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THE FREEDOM OF THE SEAS 



r 

The Sinking of 

The William P. Frge 



Prepared for 

COL. E. M. HOUSE 

Under the Direction of 
DR. SIDNEY E. MEZES 



B '^f37g 



1^ 



Chicago, January 26, 1918. 



My Dbae Doctor Mezes: 

The notes which follow have been prepared at your suggestion in 
the hope that they may help to define the position that America has 
heretofore taken diplomatically and juridically in the development of 
the opinion of the world toward: 

"Absolute freedom of navigation upon the seas outside terri- 
torial waters, alike in peace and war, except as the seas may be 
closed in whole or in part by international covenants." 

I. After some hesitation in the choice of the method of approaching 
the inquiry, it was decided to take concrete cases, the facts of which 
could be ascertained with some degree of certainty, and thence to dis- 
cuss the law applicable thereto. This does not permit the whole field 
to be developed, but it was thought to give the specific instance an 
outline and reality that the discussion of general principles so often 
lacks. 

II. The whole field of international maritime law, as administered 
by our courts and asserted by our statesmen, has been so concisely and 
completely covered by Professor Mooee, that I am contenting myself 
with references to his Digest without discussion of his citations, except 
in those cases where restatement is necessary to give emphasis to the 
matter under consideration. 

Professor Moore's Digest was printed in 1906, and the latest case 
cited seems to be a decision in 197 IJ. S. Supreme Court. There is, 
therefore, the period of 12 years last past, which lacks his illuminating 
discussion; and to this period, in which were held the Second Hague 
Conference and the Naval Conference of London, I have therefore given 
attention. 

III. The Declaration of London (the result of the Naval Confer- 
ence of 1908-1909), sought to harmonize and codified the existing prac- 
tice and law of naval war; it did not seek to establish new law; it did 
not mark much of an advance. Nor was it to be expected. The con- 
ferees (with a few notable exceptions) seem to have been diplomats, 
naval officers and bureaucrats, trained in, and adhering tenaciously to, 
the traditions of their professions. A conference thus composed Could 
not be expected to concede many things to the smaller powers or sub- 
stantially to enlarge the rights of neutrals. 

IV. The United States has accepted the Declaration of London by 
the affirmative action of the Senate (April 24, 1912). and while it may 
not be effective owing to the failure of England to ratify it, and while 
the State Department may properly declare that it is not in force as a 



II 

code of laws binding alike upon Germany and America, tlie Declaration 
must nevertheless be accepted as a code which, in 1912, the United States 
approved. 

[Note: Unfortunately the Congressional Record does not disclose 
the debate ; the notation is : 

' ' The injunction of secrecy was removed from the ratification of the 
declaration of international naval conference signed by the delegates 
of the United States to the International Naval Conference held at Lon- 
don, England, from December 4, 1908 to Februrary 26, 1909. (Ex. A. 
61 Cong. First Session.) "] 

(Vol. 48, Part 6, p. 5259.) 

V. Freedom of the Seas: 

In Germany: In this war "Freedom of the Seas" appears to have 
been first used by Bethmann-HoUweg, in his speech on August 19, 1915, 
in the Eeichstag (5 Times Hist. 60-65) : 

"Germany must thus consolidate, strengthen and secure her posi- 
tion so that other powers can never again think of a policy of isolation. 
For our and other people's protection we must gain The Freedom of 
THE Seas., not as England did to rule over them, but that they should 
serve equally all peoples. We will be and will remain the shield of peace 
and freedom of big and small nations." 

In England: In reply, Sir Edward. Grey said, Aug. 25, 1915: 
"Germany supreme, Germany alone would be free — free to break 
international treaties, free to crush when it pleased her, free to refuse 
all mediation * * * and while she may act thus, all her commerce 
at sea is to remain as free in time of war as all commerce is in time of 
peace. 

Freedom of the Sea may be a very reasonable subject for discussion, 
definition and agreement between nations after this war; but not by it- 
self alone. * * * * jf there are to be guarantees against future 
war, let them be equal, comprehensive and effective guarantees that 
bind Germany as well as other nations, including ourselves." 5 Times 
Hist. 66-68. 

Lord Cromer : 

"In the second place it is well that President Wilson should fully 
realize the fact that the meaningless and misleading phrase, invented 
in Berlin, about the freedom of the seas is generally regarded in this 
country as a mere euphemism for the destruction of that naval suprem- 
acy on the part of Great Britain, which has in the past been of such 
infinite benefit not only to Englishmen, but to the rest of the civilized 
world." 

(8 Times Hist. 738.) 



Ill 

Major-General Sir George Aston: 

"By Freedom of the Seas we mean free and unfettered access in 
time of peace to all oceans by all who wish to cross them upon their law- 
ful occasions. In time of war we mean that this privilege must be 
fought for by belligerent navies causing as little inconvenience as pos- 
sible to neutrals ; but that the right of searching neutral merchant ships 
must be maintained in order to verify their nationality and to prevent 
their aiding an enemy." 

The Wet Triangle — Cornhill Magazine, December, 1917, p. 589. 

In America: "And the paths of the sea must alike in law and in 
fact be free. The freedom of the seas is the sine qua non of peace, equal- 
ity and co-operation. No doubt a somewhat radical reconsideration of 
many of the rules of international practice hitherto sought to be estab- 
lished may be necessary in order to make the seas indeed free and com- 
mon in practically all the circumstances for the use of mankind, but 
the motive for such changes is convincing and compelling." 

President Wilson to Senate, January 22, 1917. 

VI. Thirty years ago, William Edward Hall, who has given to us 
the best treatise on International Law in the English language, wrote: 

' ' Looking back over the last couple of centuries we see International 
Law at the close of each fifty years in a more solid position than that 
which it occupied at the beginning of the period. Progressively it has 
taken firmer hold. * * * * g^^ j^ would be idle to pretend that 
this progress has gone on without check. # * * * ^jj(j ^|- -^ould 
be idle also to pretend that Europe is not now in great likelihood mov- 
ing toward a time at which the strength of International Law will be 
too hardly tried. Probably in the next great war the questions which 
have accumulated during the last half century and more will all be 
given their answers at once. Some hates, moreover, will crave for sat- 
isfaction; much envy and greed will be at work; but above all and at 
the bottom of all, there will be the hard sense of necessity. Whole 
nations will be in the field; the commerce of the world may be on the 
sea to win or lose; national existence w'ill be at stake; men will be 
tempted to do anything which will shorten hostilities and tend to a deci- 
sive issue. Conduct in the next great war will certainly be hard; it is 
very doubtful if it will be scrupulous, whether on the part of belligerents 
or neutrals ; and most likely the next war will be great. But there can be 
very little doubt that if the next war is unscrupulously waged, it also will 
be followed by a reaction towards increased stringency of law. * * * * 
I therefore look forward with much misgiving to the manner in which 
the next great war will be waged, but with no misgiving at all as to the 
character of the rules which will be acknowledged ten years after its 
termination, by comparison with the rules now considered to exist." 

Hall: International Law (preface to Third Edition). 



IV 

And with the reaction, will come the great opportunity to put into 
the International La'w of the seas safeguards for the small nations 
against the weak, for the peaceful nations against the warlike and for 
the neutral nations against the belligerent. 

With great respect, I am, my dear doctor. 

Very truly yours, 

Horace S. Oakley. 

Dr. Sidney E. Mezes, 

President of the College 

of the City of New York, 
New York. 



THE CASE OF THE WILLIAM P. FRYE. 

(Daily News Almanac 1916) 
340—341 

NAME: WILLIAM P. FEYE. (H. H. Kiehne, Master.) 
Type and Tonnage: Square-rigged sailing ship — steel — ^3374 tons. 
Bound from Seattle, Wash., to Queenstown, Ireland (or to Fal- 
mouth or Plymouth for orders) 
Sunk: When— January 28, 1915 

Where — South Atlantic 

How — 

By — Prinz Eitel Friedrich (Max Tliierichsen, Master.) 

Crew : Nationality Lost, None. Saved 

Passengers : ' ' Lost, None. Saved 

Ownership: Hull — Arthur Sewell & Company, Bath, Maine. 

Cargo — M. H. Houser. 
Character of cargo : 5200 long tons wheat. 
Armed? No. Convoy? No. 

Resisted? No. Fled? Becalmed. 

Charter party : To M. H. Houser of Portland, Oregon. 
Ship's Papers: Taken aboard captor. 

Eemarks: "First sailing vessel under the American flag"? 
Cargo consigned to "order or to assigns." 

On the 27th of January the Frye was overhauled and ordered 
to throw her cargo overboard, the crew of the Prinz Eitel Fried- 
rich apparently assisting. The work of unloading was too slow 
and the next morning the Frye was sunk. 

Note. — In the following abstract the Declaration of London is 
abbreviated: D. of L. 



THE DIPLOMATIC CORRESPONDENCE. 

(Taken from Daily News Almanac 1916, page 405-412) 

I. United States' First Nole: 

March 31, 1915. 

Mr. Gerard is instructed to present a claim against the Ger- 
man Government for $228,059.54 w'ith interest from January 28, 
1915. A brief summary of the facts is given, accompanied by an 
itemized statement of claim which is for hull, freight, expenses 
and damages for loss of use (biit not for cargo). 

II. Germany's I Note: 

April 4, 1915. 
Justifies: 

1. The ports (Queenstotwn, et al.) of destination are "strong- 
ly fortified English coast places, which moreover serve as bases 
for British naval forces." 

2. The cargo (wheat) being food, or foodstuffs, was con- 
ditional contraband within Art. 24, No. 1, Declaration of London, 
and Art. 23, No. 1, of the German Prize Ordinance, and was there- 
fore to be considered as destined for armed forces of the enemy 
under Art. 33 and 34, D. of L., and Art. 32 and 33 G. P. Ord., and 
to be treated as contraband pending proof to the contrary. 

3. No proof was capable of being adduced at that time as 
cargo papers read "to order". 

4. Sinking was therefore permissible under Art. 49 of D. of 
L., and Art 113 Ger. P. Ord., since the cruiser could not take 
prize to German port without danger to its own security or suc- 
cess of its operations. 

5. The cruiser performed its entire duty in the premises by 
saving crew and ship's papers. 

6. However, the whole matter will be reviewed (Art. 51 
D. of L., and Sect. 1, No. 2, Ger. Code Prize Procedure) before 
the Prize Court of Hamburg, when the papers are received ; and 
these questions will then be adjudicated: 

(a) Was destruction of ship and cargo necessary? 

(b) Was the property sunk liable to capture? 

(c) Indemnity? If so, how much? 



7. "However, the legal situation is somewhat different" in 
the light of the treaty of friendship and commerce of July 11, 
1799, and May 1, 1828 (Art. 13), which provides that contraband 
belonging to citizens of either party cannot be confiscated by the 
other in any case, but only detained or used in consideration of 
payment of full value of same. On the ground of this treaty 
American owners of ship and cargo would receive compensation 
even if wheat is fotmd by court to be contraband. 

8. But prize proceedings are necessary to determine 

(a) legality of capture; 

(b) legality of destruction; 

(c) standing of claimants; 

(d) amount of indemnity. 

III. United States' Reply to I German Note: 

April 28, 1915. 

While the admission of liability is highly appreciated, it is 
inappropriate to adjudicate the four questions. Only two are 
significant, and these can be settled by diplomatic negotiation: 
Standing of claimant and Amount. Calls attention to the 
fact that the present claim is for hull and not cargo. Offers to 
produce any other necessary evidence if ship's papers do not 
suffice ; suggest transference of negotiation to Washington as the 
evidence is in the United States. Does not regard the D. of L. 
(which is referred to in the German note) as in force. 

iV. Germany's II Note: 

June 7, 1915. 

Germany cannot admit that the destruction of the Frye vio- 
lates treaties or the American rights derived therefrom. These 
treaties did not have the intention of barring one of the parties 
from the right of stopping the supply of contraband to his enemy 
when he recognizes that the supply of such articles is detrimental 
to his military interests. Article 13 of Treaty recognizes the 
right to stop and detain contraband, and even to destroy it. The 
obligation to pay compensation, however, continues, whatever 
be the manner of stopping the supply. 

But the right to control contraband is subject to the decision 
of the prize courts. Germany has prize courts, and the Frye case 
is within their jurisdiction, as the treaties do not provide method 
of fixing indemnity. Germany complies with its treaty obliga- 
tion when its prize courts proceed. There would be no founda- 
tion for a claim by the American Government unless the German 
prize courts should refuse indemnity; but in that case the Ger- 



man Government would not refuse equitable indemnity. In the 
Frye case prize proceedings are indispensable apart from the 
American claims "for the reason that other claims of neutral 
and enemy interested parties are to be considered in the matter. ' ' 
Repeats the four matters for adjudication, and since adjudication 
is necessary suggests entry of claims in competent quarter in 
accordance with German Prize Code. 

V. United States, reply to Germany's II Note: 

June 24, 1915. 

Cannot concur. Only question is the method of ascertaining 
the amount of the indemnity, as Germany admits liability ; denies 
that Article 13 justifies sinking. Cites Article 13, and also 
Article 12 of the treaty of 1785. If cargo was contraband, the 
Master of the Frye should have been permitted to deliver it out, 
and the vessel should have been allo'wed to proceed; if not con- 
traband, the destruction of either cargo or vessel was not justi- 
fied. The U. S. Government does not agree that an American 
vessel carrying contraband may be destroyed without liability 
or accountability beyond the payment of such damages as may 
be assessed by a German Prize Court. The United States will 
not submit to the decision of a German Prize Court the disputed 
interpretation of a treaty the settlement of which requires direct 
diplomatic discussion. "The real question between the two 
governments is what reparation must be made for a breach of 
treaty obligations, and that is not a question which falls within 
the jurisdiction of a prize Court." If an indemnity for loss 
actually sustained is promptly paid it will be accepted as a satis- 
factory reparation; but it does not rest with a German Prize 
Court to determine what it should be or what would be satisfac- 
tory. 

Germany says that even if, the prize court should not grant 
indemnity, the German government would not hesitate to arrange 
for equitable indemnity. But the United States must be satis- 
fied with the indemnity, and it would be better to settle it now 
than later. The German view is that there would be no foundation 
for a claim by the American Government unless the prize court 
should NOT grant indemnity in accordance with the treaty. But 
the claim of the United States is for indemnity for the violation 
of a treaty, in distinction from an indemnity under the treaty: 
this must be settled by diplomacy and not by a prize court. This 
Government is not concerned with any proceedings affecting 
"other claims of neutral and enemy interested parties" which 
have not been presented by this Government, and it does not see 
the reason for delay. 



VI. Germany's III Note: 

July 30, 1915. 

The United States believes that existing treaties were vio- 
lated, but Germany insists that the cruiser acted in the legal exer- 
cise of its right to control trade in contraband, and the only obli- 
gation of Germany is to make compensation for damages sus- 
tained by the American citizens concerned. International law 
permits sinking of neutrals "under almost any conditions" for 
carrying contraband. These principles were laid down in Arti- 
cles 49 and 50 of the D. of L., "and were recognized at that time 
by the duly empowered delegates of all the nations which par- 
ticipated in the conference, including the American delegates, to 
be declarative of existing international law"; moreover, the 
United States proposed to the belligerent nations to ratify the 
D. of L. The position of Germany's first note is then repeated. 

Article 12 of the Treaty of 1785 "merely formulates general 
rules for the freedom of maritime intercourse and leaves the 
question of contraband untouched." The specific conditions are 
contained in the following Article, which is substantially Article 
13 of the Treaty of 1799. The plain intention of Article 13 is to 
establish a reasonable compromise between the military interests 
of the belligerent party and the commercial interest of the neu- 
tral party. The belligerent may prevent the trade in war sup- 
plies while interfering as little as possible with commerce of the 
neutral. The right of sinking is not mentioned: therefore it is 
neither prohibited nor permitted, so that the stipulations of the 
treaty in this particular must be supplemented by the general 
rules of international law. "Delivering out" cannot be consid- 
ered when the consequent loss of time imperils the cruiser or the 
success of her other operations. This is illustrated by the Frye 
case. 

Article 13 asserts itself by providing compensation, which 
under the rules of international law is not necessary, "For if by 
Article 13 the mere exercise of the right of highways makes the 
belligerent liable for compensation, this must apply a fortiori 
to the exercise of the right of sinking. ' ' 

The case was one for a German prize court, and the govern- 
ment therefore laid the matter before the competent prize court at 
Hamburg which found (July 10) that the cargo was contraband; 
that the vessel could not be carried into port; that the sinking 
was justified; but that under the treaty the German government 
was liable for indemnity, the amount of which the court could 
not, for lack of data, fix. 



6 

It was suggested: 

1. That the governments each appoint an expert to fix dam- 
ages which the German government will promptly pay — ^not as 
satisfaction for the violation of treaty rights, but as a duty or 
policy founded upon existing treaty stipulations; OR 

2. That the controversy be submitted to the Hague under 
Article 38 of the Ckjnvention for the Settlement of International 
Disputes. [That questions of a legal nature should be submitted 
when diplomacy fails.] 

VII. United States' Reply to Germany's III Note: 

August 10, 1915. 

After objecting to the submission to a German Prize Court, a 
combination of Germany's two plans is proposed. Any payment 
must be accepted without prejudice to the contention of the U. S. 
that the Frye was sunk without legal justification. But the mean- 
ing and intent of the treaty should go to the Hague. Pending 
the arbitration, what course will Germany pursue? 

VIII. Germany 's IV Note : 

September 19, 1915. 

Nominates Dr. Kepny as its expert, but objects to third person 
as umpire as being unnecessary. Suggests that Compromis 
(Hague 52) be arranged between American Embassy and Berlin 
Foreign Office. 

As to future conduct, points out the loss to Germany under 
the American view would be greater than the loss to America 
under the German view: but to furnish evidence of its concilia- 
tory attitude, Germany has issued orders not to destroy Ameri- 
can merchantmen laden with conditional contraband, even where 
the conditions of international law are present, but to permit 
them to continue their voyage unhindered if it is not possible to 
take them into port. Reserves the right to destroy all vessels 
carrying absolute contraband. 

IX. United States' reply to Germany's IV Note: 

October 12, 1915. 

Consents that no umpire be appointed unless in case of dis- 
agreement of experts; urges expedition; without admitting that 
the Declaration of London is in force or that Article 50 ("before 
the vessel is destroyed all persons on board must be placed in 
safety") is satisfied by merely giving them an opportunity to 



escape in life boats, the U. S. is willing to accept the rule of D. of 
L. pending arbitration in matters of absolute contraband. The 
compromis may be drafted in Berlin. U. S. prefers summary 
procedure under Articles 86 to 90. 

[From Stowell & Munro : International Cases ; War and 
Neutrality, 527, the following information is taken.] 



X. Germany 's V note : 



December 2. 526. 



While still unwilling to agree to the appointment of an um- 
pire, it has prepared and submits a cotnpromis ; rejects summary 
procedure because the German Government "attaches very par- 
ticular importance to the interpretation of the Prussian- Ameri- 
can treaties which have existed over 100 years." 

On the question of the destruction of merchant vessels the Ger- 
man Government agrees "that all possible care must be taken 
for the safety of the crcAv and passengers of a vessel to be sunk. 
Consequently, the persons on board of a vessel may not be or- 
dered into her life boats except when the general conditions, that 
is to say, the weather, the condition of the sea, and the neigh- 
borhood of the coasts, afford absolute certainty that the boats 
will reach the nearest port. ' ' 

By the provisions of the compromis, there were to be five 
judges, only one of whom on each side could be a national. The 
question was thus fra.med: 

"Whether, according to the treaties existing betiveen the par- 
ties, in particular Article XIII of the Prussian-American treaty 
of amity and commerce of July 11, 1799, the belligerent contract- 
ing party is prevented from sinking merchant vessels of the neu- 
tral contracting party for carrying contraband when such sinking 
is permissible according to the general principles of Interna- 
tional Law." 

The owners of the Frye advise, under date of January 15, 
1918, that the German Government has never paid their claim for 
the loss of their ship. 

The case was never submitted to the Hague Tribunal. 



II 

PRUSSIAN-AMERICAN TREATIES. 

The Treaty of 1785 (in effect) : 

ART. II and III. Citizens of both are to enjoy all the rights, 
privileges and exemptions in navigation and commerce which 
the most favored nation does or shall enjoy. 

ART. IV. Each party shall have a right to carry their own 
produce, etc., in their own or in any other vessel to any part of 
the domain of the other. The right is reserved, however, to pro- 
hibit in their respective countries the importation and exporta- 
tion of all merchandise whatsoever when reasons of state shall 
require it. 

ART. IX. The antient and barbarous right to wrecks of the 
sea shall be entirely abolished. 

"ART. XII. If one of the contracting parties should be en- 
gaged in war with any other Power, the free intercourse and 
commerce of the subjects or citizens remaining neuter with the 
belligerent Powers shall not be interrupted. On the contrary, 
in that case, as in full peace, the vessels of the neutral party may 
navigate freely to and from the ports and on the coasts of the 
belligerent parties, free vessels making free goods, insomuch that 
all things shall be adjudged free which shall be on board any 
vessel belonging to the neutral party, although such things be- 
long to an enemy of the other; and the same freedom shall be 
extended to persons who shall be on bourd a free vessel although 
they should be enemies to the other party, unless they be soldiers 
in actual service of such enemy." 

ART. XIII. In case either should be at war, with another 
power, no contraband — such as arms, ammunition and military 
stores carried, in the vessels or by the citizens of the non-bellig- 
erent party shall be deemed contraband so as to induce confisca- 
tion or condemnation. 

But the vessels and articles may be stopped and detained for 
such a length of time as the captor may deem necessary paying a 
reasonable compensation therefor; or the captor may take the 
military stores, paying the value thereof. 

If the master will deliver out the contraband he may do so, 
and the vessel shall not be carried into port or further detained. 



9 

AET. XV. A vessel of the neutral party sailing without con- 
voy shall not be approached by a man of war within cannon-shot. 

ART. XVI. No embargo. 

ART. XIX. The vessels of war, public and private of both 
parties, shall carry freely wheresoever they please the vessels 
and effects taken from their enemies. 

ART. XXIII. In case of war between the two parties the mer- 
chants of either country then residing in the other shall be al- 
lowed to remain nine months. Women, children, scholars of 
every faculty, cultivators of the earth, * * * * fishermen, 
etc., not to be molested. 



•) 



September 10, 1785. 

For the United States: 

, Benjamin Franklin. 
Thomas Jefferson. 
John Adams. 



The Treaty of 1799: 

ART. XII. "Experience having proved that the principle 
adopted in the twelfth article of the treaty of 1785 according to 
which free ships make free goods, has not been sufficiently re- 
spected during the two last wars and especially in that which still 
continues, the two contracting parties propose, after the return 
of a general peace to agree * * * to concert with the groat 
maritime powers of Europe such arrangements and such pei'ina- 
nent principles as may serve to consolidate the liberty and safety 
of the neutral navigation and commerce in future wars." And 
in the interval each shall observe the principles of the law of 
nations generally ackno^vledged. 

ART. XIII. No munitions carried in the vessels of one of 
the parties to the enemies of the other party shall be deemed con- 
traband, but they may be stopped and detained, the captor pay- 
ing damages, or they may be used, the captors paying the value 
thereof; but if the contraband is delivered out the vessel may 
proceed. Articles of contraband (arms, etc.) are enumerated. 

ART. XVI. Embargoes may be imposed, and in this particu- 
lar the treaty of 1785 is abrogated; but the proprietors of vessels 
detained shall obtain an equitable indemnity for freight and for 
loss. 



10 

ART. XIX. Vessels of war "shall carry freely wheresoever 
they please vessels and effects taken from their enemies * * * 
nor shall such prizes he arrested, searched or put under legal 
process when they come to and enter the ports of the other party, 
but may freely be carried out again at any time by their captors 
to the places expressed in their commissions which the com- 
manding officers of such vessels shall be obliged to show." Brit- 
ish vessels seem to be excepted. 

Berlin, July 11, 1799. 

For the United States : John Quincy Adams. 



The Treaty of 1828: 

ART. X. Each nation may have consuls, etc., in the ports 
of the other, who ' ' shall have the right, as such, to sit as judges 
and arbitrators in such differences as may arise between the 
captains and crews of the vessel belonging to the nation whose 
interests are committed to their charge, without the interference 
of the local authorities unless the conduct of the crews or of the 

captain should disturb the order or tranquility of the country 

* # * * ; J 

ART. XII. The XII Article of the Treaty of 1785 and the 
XIII to XXIV of the Treaty of 1899 (except the last paragraph 
of Article XIX relating to treaties with Great Britain) are re- 
vived as if made part of the context of this treaty, it being under- 
stood that the Articles thus revived shall always be considered 
as in no manner affecting the treaties and conventions concluded 
by either of the parties with other po'wers between 1799 and the 
commencement of the operation of the present treaty. 

ART. XIII. A vessel of either party sailing for a port of the 
other "supposed at the time of its departure to be blockaded" 
shall not be captured or condemned for having attempted a first 
time to enter said port unless the vessel could and ought to have 
learnt during its voyage that the blockade still continued. But 
vessels need be warned but once. 

ART. XV. Treaty to continue for 12 years and stand re- 
newed for term of one year till notification. 

Washington, May 1, 1828. 

For the United States : Henry Clay. 



11 

The Prussian Treaties have been before the court for con- 
struction in several cases, none of which is pertinent to the pres- 
ent inquiry. 

[A Leading Case.] 
The Steamship Appam, 234 U. S. 124 (1917, Day, J.) 

The Appam, British, 7800 tons, from west coast of Africa 
to Liverpool, with cargo and passengers, was captured January 
15, 1916, by the German cruiser Moewe on the high seas 1590 
miles from Emden, the nearest German port. She was taken to 
Hampton Roads by a German prize crew. 

The German Ambassador informed the State Department that 
under existing treaties it was the intention of the Appam to stay 
in an American port until further notice, and requested that the 
(British) crew of the Appam be interned for the period of the 
war. 

Libel by British owner. 
The Court discusses: 

I. International Law: Wliich does not permit the ports of 
the United States to be used with a view to the laying up of 
prizes. The law would permit her entry into an American port 
for necessary fuel or provisions; because of stress of weather; 
or for necessary repairs; but would require her to leave as soon 
as the cause of entrv was removed. See also XII Hague Con- 
ference, 1907, Art. 2i. 

II. The Prussian Treaty (Art. 19) : Does not apply unless 
a vessel of war shall "carry" the prize to the port of the other 
signatory. The Appam was not "carried" by a vessel of war 
but came unescorted. 

Such use of an American port was a breach of the neutral 
rights of this government. There being jurisdiction in this class 
of cases, the vessel was restored to her English owners. 

The case below was reported in 234 Fed. Rep., 389. 

[A Leading Case.] 
United States v. Diekelman, 92 U. S. 520 (Waite, C. J., 1875). 

The matters involved in this controversy were the subject of 
diplomatic exchange between Prussia and the United States. 
They were finally referred by Congress to the Court of Claims. 
The facts are substantially as follows: May 12, 1862, the Presi- 
dent relaxed the blockade of New Orleans from and after June 
1st, subject to such regulations as the Secretary of the Treasury 



12 

might prescribe. The Secretary granted permission to vessels to 
clear upon satisfactory evidence that the vessels so licensed 
would convey no persons, property, or information contraband 
of war, either to or from said ports. The Essex sailed from 
Liverpool June 19, arrived August 24, and found General Butler 
in command of the city, which was under martial law, and was 
practically in a state of siege by land, but w^as open by sea. 

General Butler had ascertained that the Confederate states 
had purchased supplies of clothing in Belgium. The first deliv- 
ery was at Matamoras awaiting payment. Another consignment 
was in Belgium, but would not be shipped until the first consign- 
ment was paid for. In September he learned that the Essex was 
taking on board large quantities of silver-plate and bullion, by 
persons, one of whom had declared himself an enemy of the 
United States, and none of whom would enroll himself as 
friend. He thereupon gave directions that the specified articles 
should be detained and their exportation not allowed until fur- 
ther orders. The master of the vessel and the Prussian consul 
were informed that the objection to the shipment of the articles 
complained of was that they were contraband. A part of the 
goods having been taken out of the vessel, she cleared October 6 
and commenced her voyage. The Court holds: 

I. That under the law of nations the Essex was subject to 
martial law and to the regulations of this government when she 
came into port. General Butler acted properly and in good faith. 
The vessel was bound not to take out contraband, and took the 
risk of this obligation. She should have protected herself in her 
contracts with shippers against the contingency of being required 
to unload after the goods were on board. 

II. Under the treaty the vessel was in port when the deten- 
tion occurred. Article 13 of the treaty of 1828 contemplates the 
establishment of blockades which are to be respected. The right 
to exclude by blockade necessarily implies the right to admit 
upon condition; a condition which prohibits the taking out of 
contraband goods is not unreasonable, and its performance may 
be enforced by refusing clearance. The facts are not within 
Article 13 because there was no detention upon a voyage. The 
vessel was required to "deliver out the goods supposed to be 
contraband" before she could clear. Her case is not within the 
treaty. The Court notes that Article 6 of the treaty of 1799, to 
the effect that examination of goods shall be made before loading, 
is not revived by the treaty of 1828. 

WiLDENHus's Case, 120 U. S., 1 (1886, Waite, C. J.), turned 
on a treaty with Belgium, but the provisions of the Belgian 
Treaty were the same in substance as Article X of the Prussian 



13 

Treaty of 1828, which provides that consuls shall have the right 
to act as judges in differences which may arise between captains 
and crews of the vessel of the nation whose affairs are entrusted 
to their care; and that the respective governments should have 
no right to interfere in matters of this kind, except the conduct 
of the captain or crew should disturb the peace and tranquility 
of the country where the vessel may be. * * * 

"Wildenhus, a' member of the crew of a Belgian steamship, 
stabbed and killed another member of the crew. The boat lay 
moored at a dock in Jersey City. The affray occurred below 
deck and no persons were present except other members of the 
crew. The tranquility of the port was not disturbed. 

Held: the local authorities had jurisdiction and the applica- 
tion for a writ of habeas corpus was denied. The court recog- 
nizes that in the enforcement of discipline or in troubles not of a 
serious nature the jurisdiction of the consul is plenary, but where 
the offense is a crime which, from its gravity awakens the pub- 
lic interest and is of a character that a nation may not leave un- 
punished without impugning its rights of territorial sovereignty, 
the government or the country may take and keep jurisdiction 
of the criminal. 

The Paquete Habana. The Lolo. 175 U. S. 677-690. 1899, Gray, 
J.; (Fuller, C. J., Harlan and MoKenna, dissenting): 

These vessels were fishing boats, one of 25 and the other of 
35 tons burden, sailing under the Spanish flag, running in and 
out of Havana and regularly engaged in fishing on the coast of 
Cuba. Their crews consisted of three and six men, respectively. 
The opinion in chief holds, reviewing the cases and the opinions 
of writers on international law, that fishing boats and their car- 
goes, both from views of mutual accommodations between neigh- 
boring countries and their tenderness to a poor and industrious 
order of people, are exempt from capture. It is in the historic 
aspect of the rule that the court refers to Article 23 of the Treaty 
of 1785 between the United States and Prussia, which was pro- 
posed by the American commissioners John Adams, Benjamin 
Franklin and Thomas Jefferson, and is said to have been drawn 
by Franklin : "all women and children, scholars of every faculty, 
cultivators of the earth, artisans, manufacturers and fishermen, 
unarmed and inhabiting unfortified to'wns, villages or places, and 
in general all others whose occupations are for the common sub- 
sistance and benefit of mankind, shall be allowed to continue 
their respective employments, and shall not be molested in their 
persons; nor shall their houses or goods be burnt or otherwise 
destroyed, nor their fields wasted, by the armed force of the 



14 

enemy, into whose power, by the events of war, they may hajtpen 
to fall; but if anything is necessary to be taken from them for 
the use of such armed force, the same shall be paid for at a rea- 
sonable price." 

It appears that Admiral Sampson (after the capture of these 
two vessels, which were taken by the Castine and Dolphin on 
April 25 and April 26, respectively) , advised the Secretary of the 
Navy that a large number of fishing schooners were attempting 
to get into Havana from their fishing grounds; that they are 
generally manned by excellent seamen belonging to the maritime 
inscription of Spain; who have all served in the Spanish navy; 
and who are liable to further service. He therefore recommends 
that, as they would be most valuable to the Spaniards as artillery- 
men, either afloat or ashore, they should be retained as prisoners 
of war. The dissenting opinion proceeds on the theory that 
while usage is a guide, the sovereign follows it or abandons it 
at will; that the rule is addressed to the judgment of the sov- 
ereign and is flexable. "It is not an immutable rule of law, but 
depends upon political considerations which may continually 
vary. ' ' They call attention that the Prussian treaties in exempt- 
ing fishermen "unarmed and inhabiting unfortified towns, vil- 
lages or places" did not exempt fishing vessels from seizure as 
prize. 

"International law is part of our law, and must be ascertained 
and administered by the courts of justice of appropriate juris- 
diction, as often as questions of right depending upon it are duly 
presented for their determination. For this purpose, where there 
is no treaty, and no controlling executive or legislative act or 
judicial decision, resort must be had to the customs and usages 
of civilized nations; and, as evidence of these, to the works of 
jurists and commentators, who by years of labor, research and 
experience, have made themselves peculiarly well acquainted 
with the subjects of which they treat. Such works are resorted 
to by judicial tribunals, not for the speculations of their authors 
concerning what the law ought to be, but for trustworthy evi- 
dence of what the law really is. Hilton v. Guvot, 159 U. S., 113 
163,164,214,215." ' 

"It is needless to review the speculations and repetitions of 
the writers on international law. Ortolan, De Boeck and others 
admit that the custom relied on as consecrating the immunity 
is not so general as to create an absolute international rule; Heff- 
ter, Calvo and others are to the contrary. Their lucubrations 
may be persuasive, but are not authoritative. ' ' 

(Fuller, 0. J., dissenting in the Paquete Habana, 175 U. S., 



15 

The other cases are not here significant. Ex parte Newman, 
14 Wall. 152 (1871 Clifford, J.), involved Article X of the Treaty 
of 1828, which gives power to consuls to adjudicate questions 
arising between captains and crews (see Wildenhus's case, ante) ; 
but the case turns on a question of practice. 

In 

Smith V. Union Bank, 5 Pet. 518-526. 
The License Cases, 5 How. 504-626. 
The Passenger Cases, 7 How. 283-568. 
The Amiable labella, 6 Wheat. 1. 
Brown V. United States, 8 Cranch 110-142. 

the treaties are not under consideration but are referred to by way 
of illustration. 



16 



m. 



DECLARATION OF LONDON. 

1. ANTECEDENT CONVENTIONS: 

A. The Armed Neutrality: 

The indignities and loss to which neutral shipping were sub- 
jected by belligerents, under the right of search, long the sub- 
ject of discussion by continental jurists, found diplomatic con- 
sideration in 1780 at the nominal instance of Catharine of Russia. 

In the war of the Revolution, it was England's policy to in- 
terfere as much as possible with our commerce, and in so doing 
she took great liberties with the shipping of the continental pow- 
ers. In her assertion of the right to seize enemy goods on neutral 
ships England was no doubt acting within the provisions of the 
Consolato del Mare (XIV Century) which was the prevailing 
maritime code of Europe, and whose rules were even more en- 
lightened than some of the nations (Spain, for example) were 
content to recognize. 

The King of Prussia, whose interests were promoted thereby 
(because Prussia had a large merchant marine and a small navy), 
had, years before (1752), announced the principle that free ships 
made free goods, and in 1778 France had proclaimed her ad- 
herence to the Prussian view: it remained to find some w'ay of 
forcing England to accept it. Prussian shipping was one of the 
chief sufferers; whereas Russia, who was on friendly relations 
with England, was practically unmolested: it was obviously de- 
sirable that Russia should take the initiative. At the instigation 
of France (Vergennes, Minister), as it would appear, Spain in 
1779 and 1780, in direct violation of the Consolato del Mare, 
seized two Russian ships laden with wheat, confiscated their 
cargoes and mistreated their crews. By the good offices of 
Frederick the Great, Spain was induced to restore the ships and 
to make compensation for the cargoes; and availing himself of 
the influence he had thus acquired at the Russian Court, Fred- 
erick induced Catharine (Count Panin, Minister), to issue (Feb- 
ruary 28, 1780) her proclamation to France, Spain and England 
that henceforth her vessels of war would enforce these principles: 

1st. Neutral vessels may freely sail from port to port and 
on the coasts of the nations parties to the war; 



17 

2nd. The goods belonging to tlie subjects of the said nations 
at war are, with the exception of contraband articles, free on 
board neutral vessels; 

3rd. With respect to the definition of contraband articles 
Russia adheres to the provisions of her existing treaty with Eng- 
land which specified military stores (Art. X), cannon, mortars, 
muskets (here follow some twenty other items of military sup- 
plies) "beyond the quality that may be necessary for the use of 
the ships" (Art. XI) ; and Russia extends the obligations of this 
treaty to all the neutrals at war; 

4th. To determine what constitutes a blockaded port, this 
denomination is confined to those, the entrance into which is 
manifestly rendered dangerous in consequence of the dispositions 
made by the attacking power with ships stationed sufficiently 
near; 

5th. These principles are to serve as a rule in proceedings 
and jud^nents with respect to the legality of prizes. 

Russia was not in sympathy with the United States (as her 
treatment of our representative, Francis Dana, whom she re- 
fused to receive, only too plainly disclosed) ; accordingly in this 
proclamation the United States was ignored; but notice was 
given to the continental powers, the neutrals of which joined in 
a league called the Armed Neutrality. Although ignored in the 
proclamation, the United States immediately approved and 
adopted it. 

It is worthy of note, however, that Russia did not recognize 
the application of the proclamation to the United States; for 
while other countries opened their ports to us, Russia, through- 
out the whole period of the Revolution closed her ports to our 
ships. 

VII Moore: Sec. 1220, p. 558-561. 

1 Johnson: Foreign Relations, 101. 

2 Fisk: Am. Rev. 169 et seq. 

Of the Armed Neutrality, Fisk says: "It was the most em- 
phatic declaration that had ever been made of the principal that 
the interests of peace are paramount and permanent, while those 
of war are subordinate and temporary." (p. 185.) 

B. The Declaration of Paris: 

The Treaty of Paris in March, 1856, between the nations en- 
gaged in the Crimean war, was followed April 16 of that year 
by the Declaration of Paris. It was the next diplomatic inter- 



18 

vention in the defense of neutrals. The four propositions it as- 
serts are: 

1. Privateering is and remains abolished; 

2. The neutral flag covers enemy's goods, with the exception 
of contraband of war ; 

3. Neutral goods, with the exception of contraband of war, 
are not liable to capture under enemy's flag; 

4. Blockades to be binding must be effective, that is to say, 
maintained by a force sufficient really to prevent access to the 
coast of the enemy. 

VII Moore: Sec. 1221, p. 561. 
1 Johnson: For. Rel. 534. 

This declaration was not recognized by the United States till 
1898, when (at the beginning of the Spanish-American war) 
its provisions were accepted. 

Soon after the Crimean war began, the United States sub- 
mitted to the consideration of the maritime nations two proposi- 
tions equivalent to those of the Declaration numbered 2 and 3; 
to the last of the propositions (4) it was not possible for the 
United States to object. 

But to the first the objection was made that while we had a 
large merchant marine we had a navy inadequate to protect it. 
President Pierce (Marcy, Secretary of State), therefore sug- 
gested to the Powers that the following be added to Section 1: 

"And that the private property of subjects and citizens of a 
belligerent on the high seas be exempt from seizure by the public 
armed vessels of the other belligerents, except it be contraband. ' ' 

After a vigorous exchange of notes our amendment was re- 
jected and the United States did not become a party. 

At the outbreak of the Civil War, Jefferson Davis (April 17, 
1861) issued a proclamation inviting all who wished to engage 
in privateering against the commerce of the United States to 
apply to him for letters of marque ; two days later President Lin- 
coln proclaimed such privateers as pirates, and immediately the 
Federal Government undertook to get the European nations to 
take the same view. Secretary Seward instructed the repre- 
sentatives of the Federal Government to negotiate for the ad- 
mission of the United States to the Declaration of Paris. The 
signatories were willing provided that stipulation be added that 
it be prospective and not retroactive and that it "did not intend 
to undertake any engagements which should have any bearing, 
direct or indirect, on the internal difficulties prevailing in the 
United States. ' ' This last stipulation, which was added by Great 



19 

Britain, was no doubt inspired by the fear that the original sig- 
natories, if this amendment was not inserted, would be held to 
the duty of pursuing and punishing as pirates all confederate 
privateers. 

On the other hand, the amendment seemed to admit that the 
Federal Government was without jurisdiction over the seceding 
states. It was for this reason promptly rejected by our Minister, 
Mr. Adams. 

The Declaration of Paris, hoiwever, suffered a temporary ab- 
rogation by Great Britain and France, who negotiated with the 
Confederacy a modification of paragraph I, whereby privateer- 
ing was specifically recognized and authorized. 

2 Johnson: Foreign Eel. 7 and 9. 

But when war with Spain was declared in 1898, the United 
States proclaimed as rules of war that it would observe com- 
plete adherence to the four propositions of the Declaration of 
Paris, and in so doing was recognized by the other powers. Spain, 
which was not a signatory to the Declaration of Paris, reserved 
the privilege of privateering but only with armored cruisers of 
her navy. Spain deserves more credit than the United States 
in this matter for she was not committed to the Declaration by 
treaties with other nations as was the United States. Further- 
more, she was foregoing a privilege that was of more value to 
her as a means of waging a successful war. 

2 Johnson: Foreign Relations, 260. 

Note: It is interesting to observe the change in English opin- 
ion on the IV paragraph of the Declaration between 1779 and 
1856: In 1779 England captured five Dutch merchantmen. The 
protest of the Dutch Government was referred to the English 
court of admiralty which held the capture lawful on the theory 
that the vessels were blockade runners: 

"Great Britain by her insular position blocks naturally all 
the ports of Spain and France and she has a right to avail her- 
self of this position as a gift of Providence." 

2 Fisk: Am. Eev. 180. 

C. General Order 100 of 1863: 

This (Lieber's) code, while in many particulars it is broad 
enough to apply to naval operations, contains but one specific 
provision governing war at sea (45) ; and therefore it is not 
within the scope of this inquiry. It is worthy of note that the 
unratified Conference of Brussels of 1874 approved the American 
rules. 



20 

D. Eed Cross Conventions: 

(a) The Geneva Convention of 1864 to ameliorate the con- 
dition of the wounded contained no rules in terms applicable to 
naval warfare. 

(b) The Geneva Conference of 1868 added ten articles appli- 
cable to naval warfare. (A. P. Higgins: The Hague Peace Con- 
ferences, p. 15) ; but this convention was never ratified, although 
its articles have been generally followed. 

(c) The Geneva Convention of 1906 does not in terms apply 
to naval warfare. The provisions of the Geneva Convention of 
1864 was, however, extended to naval operations by III H. C. 
1899, and 10 H. C. 1907. 



E. The Second Hague Conference: 

Eight conventions were drawn up at the Second Hague Con- 
ference affecting naval operations. They are: 

VI. Convention relative to the status of enemy mercbant 
ships at -the outbreak of hostilities. 

VII. Convention relative to the conversion of merchantships 
into warsMps. 

Vin. Convention relative to the laying of automatic sub- 
marine contact mines. 

IX. Convention respecting bombardment by naval forces in 
time of war. 

X. Eed Cross in naval affairs (noted heretofore). 

XI. Convention relative to certain restrictions with regard 
to the exercise of the right of capture in naval war. 

XII. Convention relative to the creation of an International 
Prise Court. 

Xni. Convention concerning the rights and duties of neu- 
tral powers in naval war. 

Of these several conventions the XII, for the establishment 
of an International Prize Court, was easily the most important. 
Sir Edward Fry, the British First Plenipotentiary at the Second 
Hague Conference said, October 17, 1907, in the Convention: 

"I have no intention to pass in review the labors of this Con- 
ference. I shall confine myself to saying that of all the projects 
we have adopted, the most remarkable in my opinion is that of 
the Prize Court, because it is the first time in the history of the 
world that there has been organized a court truly international. 



21 

International law of today is not much more than a chaos of 
opinions which are often contradictory and of decisions based on 
national laws. We hope to see little by little formed in the future 
about this court a system of laws truly international, which will 
owe its existence only to principles of justice and equity, and 
which consequently will coromand not only the admiration of the 
world, but the respect and obedience of civilized nations." 
Higgins : Hague Peace Conventions 520. 

Briefly the XII Convention, consisting of 57 Articles, pro- 
poses an International Court to have appellate jurisdiction to 
decide the validity of the capture of a merchant-ship or its cargo, 
when neutral or enemy property is involved. If the question of 
law to be decided is covered by a treaty, the provisions of the 
treaty control. In the absence of a treaty the court shall apply 
the rules of international law; and if there be no generally ac- 
cepted applicable international law the court shall give judg- 
ment in accordance with the "general principles of justice and 
equity, ' ' and these provisions apply equally to questions relating 
to the order and mode of proof. 

The rest of the act concerns the appointment of the fifteen 
judges, process, procedure, judgment, costs, and rules. 

Approval by the United States to the Convention was with- 
held till February 15, 1911, when ratification was advised. 

No doubt the Eusso-Japanese War brought to a focus the 
dissatisfaction of the neutral nations with the then existing prac- 
tice in prize cases. Nineteen English merchantmen and several 
German vessels suffered detention or capture, or destruction by 
Eussian vessels in 1904, and the only recourse was to submit 
claims to the Eussian Prize Courts, which applied the Eussian 
Eegulations, upheld the Eussian views of international law and 
executed their own decrees. An example (under the title The 
Knight Cbmmander) is given elsewhere in these notes. To the 
impartial mind the appearance in the case of one party as prose- 
cuting witness, as judge, as jury and as sheriff does not make 
for even-handed justice; and criticism to the practice in prize 
cases is to be found in the decisions of our courts. As a matter 
of fact, for nearly a century and a half there had been open op- 
position to the policy of local prize courts. 

The phrase in the 7th Article that " if no generally recognized 
rule exists, the court shall give judgment in accordance with the 
general principles of justice and equity," was the storm center 
of the discussion that followed in England and in the United 
States. As Sir Edward Fry had said, the international law on 
the subject was chaos, and certain of the governments were of the 



22 

opinion that the establishment of an International Prize Court 
could not safely be sanctioned until the "principles of justice and 
equity" were defined. Accordingly on February 27, 1908, the 
British Government sent a circular to the various powers invit- 
ing them to meet in a conference for the purpose of defining gen- 
erally the recognized principles of international law in naval af- 
fairs. The conference held pursuant to such invitation formu- 
lated the Declaration of London. 

The United States, through its courts and the utterances of 
its executives, and the treaties of its Congress, has built up a 
system of laws which it observes in its own conduct with other 
nations, and which in turn it desires to have observed by others 
in their relations with it. It may be of value to know how far 
our own juridical system is in accord with the Declaration of 
London ; and to that inquiry the following pages are given over. 



23 



" Undoubtedlj', no single nation can change the law of the 
sea. That law is of universal obligation, and no statute of one 
or two nations can create obligations for the world. Like all the 
laws of nations, it rests upon the common consent of civilized 
communities. It is of force, not because it was prescribed by any 
superior power, but because it has been generally accepted as a 
rule of conduct. Whatever may have been its origin, w'hether 
in the usages of navigation or in the ordinances of maritime 
states, or in both, it has become the law of the sea only by the 
concurrent sanction of those nations who may be said to consti- 
tute the commercial world." 

The Scotia, 14 Wall. 170-187 (Strong, J., 1871). 

' ' The seat of judicial authority is, indeed, locally here, in the 
belligerent country according to the known law and practice of 
nations ; but the law itself has no locality. ' ' 

The Maria, 1 C. Rob. 296 (Am. Ed). Sir William Scott, 1799. 



24 



CHAPTER I. 



[BLOCKADE IN TIME OF WAK.] 



Article 1. A blockade must not extend beyond the ports and coasts 
belonging to or occupied by the enemy. 



1. Paoipic Blockade: Although Pacific Blockade is not in 
terms within the scope of this Chapter, Westlake and others 
believe that it should he governed by the same rules. The United 
States, in 1838, in the case of the schooner Lone, applied the rules 
of war blockade to a case of Pacific blockade. VII Moore, 135. 
The first instance of Pacific blockade was the blockade about 
1827 of the coast of Greece ; here, too, was the last Pacific block- 
ade. In Oppenheim's apt phrase it is for "intervention or re- 
prisals." The general principles of Pacific blockade were 
approved by the Institute of International Law in 1887, pro- 
vided the blockade be limited to the ships of the blockaded power. 

The Venezuelan Preferential Case, 1 Hague C. R. 55 ; 

Consult: VII Moore, 135; 

Albert E. Hogan: Pacific Blockade, (Oxford, 1908) ; 

Westlake: Collected Papers, 572; 

2 Oppenheim, 48. 

In any international agreement for world peace, the signifi- 
cance of the Pacific blockade cannot be overestimated. "Where 
it can be enforced at all it is obviously the most drastic economic 
measure that can be applied to a rebellious nation. Further- 
more, it is capable of specialized control as to ports and goods, 
so that the pressure may be applied where the pressure is most 
needed. If administered in accordance with an international 
understanding, objection on the part of individual nations dis- 
appears. 

2. When Oub 'Coxjntey Is Not Our Couktky : A blockade 
may be of a home port or a home coast "occupied by the enemy." 
In the Franco-Grerman war France declared the blockade of 
Rouen and certain other French ports which were at that time 
occupied by the enemy. Territory so occupied is pro hac vice 
enemy territory. This is the rule in the United States. 



25 

United States v. Eice, 4 Wheat. 246 (1819, Story, J.) : 

September 1, 1814, Castine, Maine, was captured by the Brit- 
ish, who continued in exclusive possession of it by their military 
and naval forces till the ratification (in February, 1815) of the 
treaty of peace. During this period the British exercised all 
civil and military authority over the place, established a custom 
house, and admitted goods to be imported according to regula- 
tions prescribed by the British G-overnment, and among other 
goods, the goods here in question which remained in Castine till 
after the evacuation. 

After the peace, the collector of customs sought to collect 
American duties upon these goods: but his right to do so was 
denied by the Supreme Court, which held that by conquest and 
military occupation, the enemy acquired that firm possession 
that enabled him to exercise the fullest rights of sovereignty 
over the place, and that in the meantime the sovereignty of the 
United States was suspended. "By surrender the inhabitants 
passed under a temporary allegiance to the British Government, 
and were bound by such laws, and such only, as it chose to recog- 
nize and impose." The goods were not, in any correct sense, 
imported into the United States. They were liable to duties when 
imported or not at all. Their status was the same as if Castine 
had previously been a foreign territory, ceded by treaty to the 
United States. And this rule was approved in MacLeod vs. The 
United States, 229 U. S., 416-428 (1912, Day, J.). 

The State Department has followed the Castine case in the 
Bluefields (1899), the Mazatlan (1873), and the Columbia (1875) 
cases, though hesitating to recognize it in the Civil War. I 
Moore 49 ; VI Moore 995. 

3. When Domestic Chakacter Is Restored : It was agreed 
by counsel in The Venice, 2 Wall. 258 (1864, Chase, C. J.), that 
the foreign character of the territory (New Orleans) continued 
till a capitulation, the terms of which contemplate a change of 
national character, or by formal cession or by long lapse of time ; 
but the court held that under the legislative policy of our gov- 
ernment, actual military occupation and control replaced rebel, 
by national, authority, and recognized to some extent, the con- 
ditions and responsibilities of national citizenship. 

See the Circassian, 2 Wall. 135, post (Article 5). 

4. In the War of the Eebellion, the Federal Government was 
often embarrassed in the practical application of the rule of 
Article I. 

Thus Matamoros, Mexico, and Brownsville, Texas, were on 
opposite sides of the Eio Grande Eiver, the mouth of which was 



26 

blockaded by the Federals. The Labuan, a British vessel laden 
with cotton and sailing from Matamoros, was captured and sent 
to New York for adjudication. "In all probability this govern- 
ment will ultimately have to pay heavy damages for this cap- 
ture." Seward to Stanton, March 13, 1862 (VII Moore 782-785). 
The situation was complicated by reason of our treaty with 
Mexico (1848) that the navigation of the river should be free and 
common to the citizens of both countries. See post : The Peter- 
hoff. 

Note : An official commentary accompanies the Declaration 
of London. It is indispensable; but it could not be included in 
these pages. 

Note : Volume I of British and Colonial Prize Cases is cited 
in these notes as 1 Trehem. 



27 

[BLOCKADE IN TIME OF WAR.] 

Article 2. In accordance with the Declaration of Paris of 1856, a block- 
ade, in order to be binding, must be effective, — ^that is to say, it must 
be maintained by a force sufficient really to prevent access to the 
enemy coastline. 



1. Papee Blockade : For an elaborate discussion of paper 
blockade, see VII Moore, 797. 

Variants of paper blockades are tlie war zone pkoclamatiobts 
of Germany and England. 

February 4, 1915, Germany declared: "The waters around 
Great Britain and Ireland including the whole English channel 
are hereby declared a war zone on and after February 18, 1915. 
Every enemy merchant ship found in this war zone will be de- 
stroyed, even if it is impossible to avert dangers which threaten 
the crew and the passengers. Also neuteal ships in the war zone 
are in danger. * * * Shipping northward, around the Shet- 
land Islands, in the eastern basin of the North Sea, and a strip 
of at least 30 nautical miles in breadth along the Dutch coast 
is endangered in the same way. 

3 Times Hist., 1. 

In March, 1915, a retaliatory order was issued by the English 
Government : 

No merchant vessel which sailed after March 1, 1915, shall 
be allowed to proceed to or from any German port ; vessels sail- 
ing after March 1, 1915, with goods for a German destination, 
or of a German origin, may be required to discharge such goods 
at an English port. 

Idem, p. 18. 

The Order in Council of March 11, 1915, above referred to, 
is called in the cases the "Eeprisals" Order: 

The United States, 2 B. & C. P. C, 390. 

The Feedbeik VIII, 2 B. & C. P. C, 395 (holding that German 
government bonds are "goods" or "commodities" and are good 
prize). 

Compare Napoleon's decree declaring all the British Islands 
under blockade and prohibiting all trade in English goods (Nov. 
21, 1806), and England's reply ordering a blockade not only of 
the ports of France and of her allies, but of all countries from 
which her ships were excluded. 



28 

2. The case (1898) of the Olinde Rodrigues because of the 
divergence of view between the trial court and the Supreme 
Court, illustrates the scope of this article. The continental juris- 
consults have exhausted ingenuity in devising the conditions 
necessary to an effective blockade: that the ships of the block- 
ading squadron should be stationary; should be a specified dis- 
stance from each other and from the coast; and should be not 
less than a certain number. 

"Writers like Heffter, Ortolan and Hautefeuille would require 
the actual closure of the harbor by vessels anchored near to- 
gether, at least enough so that any vessel attempting to enter 
will be subject to a cross fire from two blockades." 

Benton: Int. Law and Dip. of Spanish- American War 203. 

But the case next discussed recognizes the increase of effi- 
ciency that steam, long-range guns and searchlights have 
wrought. 

The Olinde Eodbigues, 174 U. S. 510 (1899, Fuller, C. J.). Ee- 
ported below, 89 F. R. 105; 91 F. E. 274: 

June 27, 1898, President McKinley declared San Juan, Porto 
Rico, in a state of blockade. Eleven days before, the Olinde, a 
French merchant vessel of 1,675 tons, had sailed from Havre 
on a prescribed trip requiring ber to call, among other places, at 
San Juan, where she arrived on the morning of July 4th. The 
Yosemite (cruising off the port) stopped her and entered upon 
her log an official warning of the blockade. Without entering 
the port, she proceeded to San Domingo and Haiti, and on her 
return trip on July 17th was captured by the New Orleans and 
was taken by a prize crew to Charleston, where, after a hearing, 
she was ordered restored to claimants because, in the opinion 
of the court below, there was no effective blockade of the port of 
San Juan on July 17th. 

Claimant below had urged that on his return trip he was not 
intending to call at San Juan, and had notified the ship 's agent 
at San Juan that Olinde would not touch there. She had no 
passengers or mail for San Juan. Her cargo was the products 
of that region. She arrived off San Juan in broad daylight, and 
according to her testimony, was on her course to St. Thomas. 
The testimony is conflicting. The United States sought to show 
that she was trying to get under the protection of the forts at 
San Juan, but the views of the Government seem not well taken. 
The court finds, as a matter of fact, that she was not seeking 
to enter the port of San Juan, but that the captors had probable 
cause for making the capture. Eestitution was ordered, without 
damages, and all costs and expenses incident to her custody and 



29 

preservation and all costs in the cause except the fees of coun- 
sel, were imposed upon the ship. 

The case is important for deciding: 

1. That if a single modern cruiser, hlookading a port, ren- 
ders it in fact dangerous for other craft to enter the port, that is 
sufficient, since thereby the blockade is made practically effective. 

2. The old definition of "an effective blockade" seems to be 
approved, namely: that egress or entrance shall be attended 
with evident danger (522). 

3. That there is a distinction between a military blockade 
and a commercial blockade (520-522) : a difference in kind and 
in degree; it is not open to a neutral trader to ask whether or 
not the blockade, as against the possible superiority of the 
enemy's fleet, is or is not effective in a military sense, if it be, 
as in this case, effective in a commercial sense. 



■^j 



The opinion of Judge Beawlby, the trial judge, in the Olinde 
case contains many interesting citations. He says (91 Fed. E. 
279): 

"What constitutes an 'effective' blockade cannot be defined 
with absolute and rigorous precision. Some nations have en- 
deavored to define it by treaty. Prussia and Denmark, in 1818, 
stipulated that two vessels should be stationed before every 
blockaded port. An earlier treaty between Holland and the 
Two Sicilies prescribed that at least six ships of war should be 
ranged at a distance slightly greater than gunshot from the 
entrance. A still earlier treaty between France and Denmark 
provided that the blockaded port should be closed by two vessels 
at least, or by a battery of guns on land. ' ' 

The Treaty of 1871 with Italy : " * * * being desirous of 
removing every uncertainty which may hitherto have arisen re- 
specting that which, upon principles of fairness and justice ought 
to constitute a legal blockade, they hereby expressly declare that 
such places only shall be considered blockaded as shall be actually 
invested by naval forces capable of preventing the entry of 
neutrals, and so stationed as to create an evident danger on 

THEIR PART TO ATTEMPT IT." (Art. XIII.) 



30 

[BLOOICADB IN TIME OF WAR.] 

Article 3. The question whether a blockade is effective is a question 
of fact. 



1. In the OZwc^e JRoc^n^Me^, 174 U. S. 511, it is said : "This 
country has always recognized the essential difference between 
a military and a commercial blockade. ' ' Also : ' ' The difference 
is in kind and in degree. ' ' But the cases do not always distin- 
guish between the two kinds, and if one may rely upon this case 
to draw the distinction it would seem that an effective commer- 
cial blockade is one which makes it dangerous for merchant ves- 
sels to attempt to enter or to leave the blockaded port, and that 
an effective military blockade is one which makes it dangerous 
for enemy war vessels to attempt to enter or to leave the block- 
aded port. 

2. Under existing practice in the Prize Courts, little chance 
exists of a prize to escape condemnation under this rule. The 
blockading vessels are not required to be stationary ; nor within 
a designated distance of the port blockaded (The Adula, 176 
U. S. 361) ; one blockading warship is quite sufficient (The Olinde 
Rodrigues) ; and the blockaders are not required to be in sight of 
the port (The Baigorry, 2 Wall. 474) ; nor does the occupation 
of the blockaded city by the blockading belligerent in all cases 
terminate the blockade. (The Circassian, 2 Wall. 135). 



31 



[BLOCKADE IN TIME OF WAR.] 



Article 4. A blockade is not regarded as raised if the blockading force 
is temporarily withdrawn on account of stress of weather. 



1. This has always been the law of the United States. The 
American delegate, Admiral Stockton, was within the tradition 
of his family ( ?) for, in 1846, Commodore Stockton (Robert Field 
Stockton, 1795-1866) considered this contingency in the block- 
ade of the Mexican west coast : "A sufficient American force to 
maintain it, actually present or temporarily driven from such 
actual presence by stress of weather, intending to return." (VII 
Moore, 791). 

And the same rule was announced in 1898 by General Order 
492 (June 20) of the Navy Department: "A blockade to be 
effective must be maintained by a force sufficient to render in- 
gress or egress from the port dangerous." 

The English rule (declared as early as 1799: The Columbia, 
1 C. Bob. 154) , holds with us, but the Continental authorities are 
not uniform. 

VII Moore, 843. 

2. Temporary break, for other reasons: 

In the Civil War, when the Niagara, blockading Charleston, 
S. C, was replaced by the Harriet Lane after an interval of a 
day or two, the blockade was held by Mr. Seward not so far im- 
paired as to require new notice. But this opinion was without 
discussion of the effect that the hiatus in actual blockade might 
have on vessels that had entered or cleared during the interval. 

VII Moore, 843. 

The English view of this incident is thus stated : 
' ' Thus when in 1861 during the American Civil War the Fed- 
eral Cruiser Niagara, which blockaded Charleston, was sent 
away and her place taken after five days by the Minnesota, the 
blockade ceased to be effective, although the Federal Government 
refused to recognize this. ' ' 
2 Oppenheim, 465. 

The Nancy, 1 Acton 57 (1809, High Court of Appeals) : The 
charter-party provided that the ship should sail for Martinique ; 
but if it was blockaded she should go to St. Thomas. Given to 



32 

understand that there was no blockade, she went to the port of 
destination in Martinique, stayed twelve days without seeing a 
warship and set sail thence for New York. Captured, she was 
ordered restored : ' ' The periodic appearance of a vessel of war 
in the offing could not be supposed a continuation of a blockade, 
which the correspondence mentioned had described to have been 
previously maintained by a number of vessels and with such 
unparalleled vigor that no vessel whatever had been able to en- 
ter the island during its continuance. ' ' 



33 



[BLOCKADE IN TIME OF WAR.] 



Article 5. A blockade must be applied impartially to the ships of ail 
nations. 



1. This is the reciprocal of Convention XIII Hague, 1907, 
Art. 9. 

"A neutral power must apply impartially to the two bellig- 
erents the conditions, restrictions or prohibitions issued by it in 
regard to the admission into its ports, roadsteads or territorial 
waters of belligerent warships or of their prizes." 

2. It is said, in passing, in The Bermuda, 3 Wall. 514-551 : 
"Neutrals, in their own country, may sell belligerents what- 
ever belligerents choose to buy. The principal exceptions to this 
rule are that neutrals must not sell to one belligerent what they 
refuse to sell to another * * * " 

(Chase, C. J.) 

3. Are the ships of a belligerent likewise excluded? Is the 
blockade raised when the blockaded port is occupied? 

Lord Lyons to Secretary Seward (July 11, 1864) : 
"Belligerent right of blockade cannot be lawfully enforced 
against neutrals by a belligerent who is in actual possession of 
the port alleged to be blockaded," protesting (July 11, 1864) 
against the blockade of Brownsville at that time in the posses- 
sion of the Federal forces. 

Secretary Seward's reply is not wholly responsive, but it 
refuses to consider the blockade as raised (July 13, 1864). 

In the Circassian, 2 Wall., 135, the Court held that the occu- 
pation by the Federal forces of the city of New Orleans and of 
the Mississippi Eiver for 70 miles above New Orleans, did not 
raise the blockade. The argument on page 151 indicates that 
although the military occupation occurred May 1 and May 2, 
yet the blockade was not broken till proclamation, which was 
made May 12 to go into effect June 1, 1862. Lord Lyon's pro- 
test may have been justified by the English rule that the block- 
ader can not relax the rigor of the blockade for his own benefit. 
The question came up in the Franciska, 10 Moore P. C, 37, where 
certain licenses had been issued to carry on a limited trade with 
specified ports (but not all) in the Gulf of Eiga. * * * "A 



34 

belligerent, if he inflicts upon neutrals the inconvenience of ex- 
clusion from commerce with such place must submit to the same 
inconvenience himself ; and that if he is at liberty to select par- 
ticular points in which it suits his purpose that the blockade 
should be violated with impunity, each neutral in order to be 
placed on equal terms with the belligerent, should be at liberty 
to make such selection for himself." 



35 



[BLOCKADE IN TIME OF WAR.] 



Article 6. The Commander of a blockading force may give permission 
to a warship to enter, and subsequently to leave, a blockaded port. 



1. Neutral men-of-war were admitted into blockaded ports 
during the Civil War, and also during the Spanish-American 
War. Nevertheless, Admiral Dewey, blockading the harbor of 
Manila, denied access to the port to German warships and on 
one occasion Secretary Seward refused the request of Lord 
Lyons that a British man-of-war be admitted to Charleston or 
Wilmington (March 26, 1864). 



36 



[BLOCKADE IN TIME OF WAR.] 



Article 7. In circumstances of distress, acknowledged by an officer of 
the blockading force, a neutral vessel may enter a place under block- 
ade and subsequently leave it, provided that she has neither dis- 
charged nor shipped any cargo there. 



1. A formal recognition of a rule that occasionally is ex- 
pressly incorporated in the declaration of blockade, as for ex- 
ample, in the peaceful blockade declared by England and Ger- 
many against Venezuela. Stowell and Munro : War : 10, Note 
2. It was no doubt inserted in this case to placate the neutral 
powers. 

2. Though not gebmane to the subject of this Article, the 
following notes are inserted for convenience at this point : 

Chapter II of XI H. C, 1907, treats of the exemption from 
capture of certain vessels in naval war as fishing boats (see 
Paqueta Habana, supra). 

But a deep-sea fishing cutter of 110 metric tons, manned by 
a crew of fifteen hands, is not immune as a coast fishing vessel. 

The Beelin ; 1 Trehern, 29, citing and following. 

The Michael ; 2 Russian and Japanese P. C, 80. 

The Alexandee; 2 idem, 86. 
and a small coasting vessel (not a fishing boat) is not exempt. 
The Maeia; 1 Treh., 259 ; neither are lighters and tugs. Deutsches 
Koehlen Depot Floating Craft. 2 B. & C. P. C, 439. 

3. Article 4 is as follows: 

"Vessels charged with religious, scientific or philanthropic 
missions are likewise exempt from capture. ' ' 

When Tsing-tau was about to be invested by the English and 
Japanese squadrons, the German governor ordered the German 
steamer Paklat to transport the women and children to Tientsin. 
She was captured and taken to Hong Kong where she was ad- 
judged a good prize, on the ground (Kees-Davies, C. J.), that 
the Hague Convention did not cover the case. 

1 Trehern, British P. C. 517. 

Stowell V. Munro : War 110. 

It will be recalled that in the case of the Manouha (Hague 
Court Reports, Scott, p. 341), it was stated by France that the 



37 

Ottoman passengers on the Mcmoiiba were members of the Red 
Crescent (equivalent to our Bed Cross) Mission, while Italy in- 
sisted that they were carrying arms and money for the use of 
the Turkish forces in Tripoli. 

The Eersog, having on board an ambulance corps for the aid 
of the Boers, was released although the members of the corps 
were armed with revolvers, on the ground that this did not dis- 
qualify them from being non-combatants. 

Pari. Deb., Vol. 78, p. 907. February 8, 1900. 

Article I of X, Hague Con., 1907, provides : 

"Military hospital ships, that is to say, ships constructed or 
assigned by states specially and solely with a view to assisting 
the wounded, sick and shipwrecked, the names of which have 
been communicated to the belligerent powers at the commence- 
ment or during the course of hostilities, and in any case before 
they are employed, shall be respected and cannot be captured 
while hostilities last * * *." 

The Ophelia, 1 Trehern 210, a German military hospital ship, 
was captured Oct. 18, 1914, off the Dutch coast. She had been 
officially designated as a military hospital ship by the German 
government which undertook to use the ship for no other mili- 
tary purpose. But it appeared that she was not suitably equipped 
as a hospital ship ; that she had never been used as such ; that 
she had more than twice as many signal lights of various colors 
as battleships carry; that when about to be boarded some of 
her books and documents were thrown overboard and that sub- 
sequently some were burned. Held: a good prize. 

Affirmed in Privy Council; 2 B. & C. P. C, 150 (Sir Arthur 
Channell) : an elaborate review of the facts. 
See also The Hanametal, post Art. 45. 



38 



[BLOCKADE IN TIME OF WAR.] 



Article 8. A blockade, in order to be binding, must be declared in ac- 
cordance with Article 9, and notified in accordance with Articles 11 
and 16. 



[BLOCKADE IN TIME OF WAR.] 

Article 9. A declaration of blockade is made either by the blockading 
Power or by the naval authorities acting in its name. 
It specifies — 

(1) The date when the blockade begins; 

(2) The geographical limits of the coastline under blockade; 

(3) The period within which neutral vessels may come out. 



[BLOCKADE IN TIME OF WAR.] 

Article 10. If the operations of the blockading Power, or of the naval 
authorities acting in its name, do not tally with the particulars, which, 
in accordance with Article 9 (1) and (2), must be inserted in the 
declaration of blockade, the declaration is void, and a new declara- 
tion is necessary in order to make the blockade operative. 



1. In the dissenting opinion in the Pedro, lib U. S. 354, it was 
doubted whether the blockade was effective because the block- 
ading fleet were on their way to the port of Havana. But this 
question was not necessary to a decision of the case. 

2. The declaration is strictly construed. 
The Peteehoff, 5 Wal. 39-52. 

3. The time permitted the vessels of neutrals to leave 
blockaded ports has varied from time to time with the exigencies 
of the case. Often in the same proclamation the time within 
which and the conditions upon which innocent belligerent mer- 
chantmen are immune from capture (if they be not actually en- 
gaged in the transportation of soldiers or of munitions), are also 
stated. The two declarations must not be confounded: Each 
proceeds upon its own precedents and reasoning, but for con- 
venience illustrations of both rules are given under this Article. 



39 

Neuteal : 

The Prize Cases, 2 Black, 635 (1862, Grier, J.), presents an 
unimportant variant : The Hiawatha, a British barque, was cap- 
tured May 20, 1861, in Hampton Roads. 

April 19 the President proclaimed a blockade, allowing, how- 
ever fifteen days for foreign ships to depart AFTER the estab- 
lishment of the blockade. The blockade was effectual April 30 
and the barque, which had refused to come out of the James 
River at Richmond in ballast, hurried to take cargo, which was 
completed May 15. But Avhen she was ready for sea she could 
not get a steam tug and was not taken in tow till the 17th. 
The first tug lacked the power and she came to anchor ; her voy- 
age down river did not begin effectively till May 18. While the 
proclamation of effectiveness by Commodore Prendergast limits 
the warning to those who should "approach the blockade," his 
proclamation had been communicated to Lord Lyons. The Hia- 
watha was in a blockaded port and knew of the blockade, and 
when it became effective. "According to the construction con- 
tended for, a vessel seeking to evade the blockade might ap- 
proach and retreat any number of times and when caught her 
captors could do nothing but warn her and indorse the warning 
upon her registry." 

Condemnation decreed. 

Belligerent : 

The Buena Ventura, 175 U. S. 384 (1899, Peckham, J.). The 
Chief Justice and Gray and McKenna, J. J., dissenting. 
Merchant vessels of the enemy carrying on innocent com- 
mercial enterprises at the time, or just prior to the time when 
hostilities break out, are accorded liberal treatment. 

April 25, 1898, Congress declared war against Spain and 
stated that the war had existed since April 21. The President, 
on April 26, issued his proclamation of principles to be followed 
in the prosecution of the war. It was dated the day it was is- 
sued ; it provided that Spanish merchant vessels in any ports or 
places within the United States shall be allowed until May 21, 
1898, inclusive, for loading their cargoes and departing from 
such ports or places, and that such Spanish merchant vessels if 
met at sea by any United States ship should be permitted to con- 
tinue their voyage if upon examination of their papers it shall 
appear that their cargoes were taken on board before the ex- 
piration of the above term, but excludes from the operation ves- 
sels having on board any officer in the military or naval service 
of the enemy, or coal except such as may be necessary for their 



40 

voyage, or any other article prohibited or contraband of war, 
or any dispatch, of or to the Spanish government. 

The Bxiena Ventura arrived at Ship Island, Mississippi, 
March 31 ; was laden with innocent cargo by April 19, on which 
day she sailed to Norfolk for bunker coal; early on April 22 
off the Florida reefs, she was captured. 

It will be noticed that she was not within the letter of the 
proclamation because prior to the 21st day of April she had 
sailed, and therefore on that date she was not ' ' in any ports or 
places within the United States." 

But the court held that the intent of the declaration was to 
fix a time in the future, prior to the expiration of which vessels 
of the character named might sail from our ports and be exempt 
from capture. 

Note: The dates given in the opinion would make the cap- 
ture occur before the proclamation. See VII Moore, 170. 

But the Panama, a Spanish mail steamer, bound for an enemy 
port, carrying an armament (no doubt placed on her for defense 
against "enemies, pirates and assailing thieves," but susceptible 
of use for hostile purposes), and herself liable, upon her arrival 
at that port to be appropriated by the enemy to such purposes, 
was not within the President's proclamation. 

The Panama, 176 U. S. 535. 

See also: VI Hague, 1907, Art. 3. 

The Perkeo: Stowell and Munro, War, 43. 

The Pedro (175 U. S., 354), built in England but duly reg- 
istered as a Spanish ship, arrived at Havana April 17, 1898, on 
a trip from Europe that contemplated (under her charter-party), 
a call at a port of the United States before her return. April 22, 
on her way from Havana to Santiago she was captured ; she was 
held a good prize because she was not in a port of the United 
States when war was declared (under the 4th rule) ; and the ma- 
jority of the court thought she was not under the 5th rule be- 
cause she must have known of the imminency of hostilities and 
was not carrying a cargo to the United States. 

VII Moore, 453. 

The period of immunity is usually from five days to six weeks. 

Germany did not agree to Article 3 of the VI H. C., 1907, 
and for that reason the English High Court of Justice in Prize 
(Sir Samuel Evans, President), declined to extend the exemp- 
tions of that Article to the German sailing vessel Moewe which 
was captured in the Forth near Granton the day after war was 
declared by England. 



41 

The case is interesting for the discussion of the right of an 
alien enemy to be heard in his own behalf in an English court: 
the right pro hac vice was upheld. 

The Moewe: Trehern's Prize Cases, p. 63-74; 
Stowell &, Munro : War : 105. 

The Barenfels, 2 B. & C. P. C, 36, allowing an appeal from 
S. C. 1 Treh., 122, and holding the case in abeyance till it can be 
ascertained if Germany intends to respect VI Hague, 1907, Arts. 
1 and 2. 

The AcHAiA, 2 B. & C. P. C, 45, affirming S. C. 1 Treh., 242, 
where the British Prize Court, sitting in Alexandria, recognizes 
VI H. C. 1907. The Achaia refused a safe-conduct pass, re- 
mained in Alexandia {not a neutral port) beyond the time limit 
(Aug. 14) and was held a good prize. For form of safe conduct 
see this case (244). 

3. The third paragraph of this Article is a recognition of 
Article 1, VI H. C, 1907 : it assumes, based upon well established 
custom, that days of grace will be given in every instance. But 
a distinction exists between the status of an enemy ship in port 
and the status of the same ship on the high seas. A port in the 
sense of the Article is not a fiscal port but a commercial port 
"where ships are in the habit of coming for the purpose of load- 
ing or unloading, embarking or disembarking." The Moewe, 
supra, and note the dissenting opinion in the Buena Ventura, 
supra. 

See, also, The Belgia, 1 Treh., 303. Affirmed, 2 B. & C. P. C, 
32. 

4. The Germania : 1 Treh., 573 ; affirmed 2 B. & C. P. C, 365 : 
a racing yacht is not within VI H. C, 1907. 



42 

[BLOCKADE IN TIME OF WAR.] 

Article 11. A declaration of blockade is nottfled — 

(1) To neutral Powers, by the blockading Power by means of a 
communication addressed to the Government direct, or to their repre- 
sentatives accredited to it; 

(2) To the local authorities, by the officer commanding the block- 
ading force. The local authorities will, in turn, inform the foreign 
consular officers at the port or on the coastline under blockade as soon 
as possible. 



[BLOCKADE IN TIME OP WAR.] 

Article 12. The rules as to declaration and notification of blockade ap- 
ply to cases where the limits of a blockade are extended, or where a 
blockade is re-established after having been raised. 



[BLOCKADE IN TIME OF WAR.] 

Artide 13. The voluntary raising of a blockade, as also any restric- 
tions in the limits of a blockade, must be notified in the manner pre- 
scribed by Article 11. 



[BLOCKADE IN TIME OF WAR.] 

Article 14. The liability of a neutral vessel to capture for breach of 
blockade is contingent on her knowledge, actual or presumptive, of 
the blockade. 



[BLOCKADE IN TIME OF WAR.] 

Article 15. Failing proof to the contrary, knowledge of the blockade 
is presumed if the vessel left a neutral port subsequently to the notifi- 
cation of the blockade to the Power to which such port belongs, pro- 
vided that such notification was made in sufficient time. 



[BLOCKADE IN TIME OF WAR.] 

Article 16. If a vessel approaching a blockaded port has no knowl- 
edge, actual or presumptive, of the blockade, the notification must be 
made to the vessel itself by an officer of one of the ships of the block- 
ading force. This notification should be entered in the vessel's log- 
book, and must state the day and hour, and the geographical position 
of the vessel at the time. 



43 

If, through the negligence of the officer commanding the blockad- 
ing force, no declaration of blockade has been notified to the local 
authorities, or, if in the declaration, as notified, no period has been 
mentioned within which neutral vessels may come out, a neutral ves- 
sel coming out of the blockaded port must be allowed to pass free. 



The Adtjla, 176 U. S. 361. (1900, Brown, J. Dissenting: SMras, 

Grray, White, Peckham, J. J.). 

[Memo : An unsatisfactory opinion. Much of it is taken up 
with a discussion of the evidence and the legal inferences there- 
from. The evidence was in preparatorio, but a motion had been 
made to open the case for complete proofs and in the opinion 
some of the moving affidavits are referred to as if they had been 
received in evidence.] 

Libel in Prize. 

April 20, 1898, a joint resolution of the House and Senate 
declared that the people of Cuba are, and by right ought to be, 
free and independent; that the government of Spain should re- 
linquish its authority, etc. ; that the President of the United 
States use the land and naval forces of the United States to carry 
these resolutions into effect ; that the United States disclaims any 
disposition to exercise sovereignty over Cuba, except for the 
pacification thereof. 

By Act of April 25, 1898, Congress declared a state of war 
to exist as of April 21, 1898. 

April 22 the President declared a blockade of the east coast 
of Cuba near Havana, and of Cienfuegos, on the south coast. 
On June 27 the President proclaimed a blockade extending from 
Cape Frances on the west to Cape Cruz on the east. Neither of 
these proclamations included the harbor of Santiago or Gruan- 
tanamo, which lie to the east of Cape Cruz on the south coast. 

Early in June, however. Admiral Sampson had established 
a blockade of Santiago (where the fleet of Cervera then was), 
and these two blockades were actual and effective until after the 
capture of the Adula. But the dissenting opinion, with consid- 
erable force, questions the right of Admiral Sampson to estab- 
lish the blockades of Santiago and Guantanamo, partly because 
such blockades violated the spirit of the President's proclama- 
tions and official utterances, and partly because it was doubted 
if Admiral Sampson, in view of all of the facts in the case, had 
the right to exercise this act of high sovereignty. 



44 

The Adula belonged to a British corporation, The Atlas 
Steamship Company, was registered in the name of the manag- 
ing director of the corporation; flew the British flag, and had 
been engaged in coastwise trade between Kingston and other 
ports in Jamaica and Cuba. She had made three trips (two with 
the consent of the American Consul) to carry refugees from 
Cuba to Jamaica. On the last trip, made without the permission 
of the American Consul, she entered the harbor unmolested, 
came out, was overhauled, warned, and permitted to return to 
Kingston. 

June 28 she was loading at Kingston when she was chartered 
by Solis, a Spanish subject born near Havana, and living at 
Manzanillo. He was running refugees out of Cuba at sixty dol- 
lars a head, and held a passport from the Spanish Consul to 
enter cities and take away refugees. He was a man of intelli- 
gence and substance, and chartered the Adula for £100 a day, 
entering himself upon the ship 's articles as supercargo. If the 
trip had been successful he would have cleared |19,000. Under 
the charter-party the vessel was to proceed to the ports of Man- 
zanillo, Santiago and Guantanamo, or any one, or any two, or 
all three of them, and to return to Kingston. The right to renew 
the charter-party on twenty-four hours' notice was reserved. 
The cargo she had taken was unloaded and she sailed light, with- 
out contraband aboard. At Guantanamo she was halted by the 
Vixen, but allowed to proceed. American warships were ob- 
viously investing the port. The permission of the Vixen was as 
follows : 

Captain of the Vixen: Didn't you sight the warships down 
at Santiago? 

Captain of the Adula: Yes. 

Captain of the Vixen: Didn't you hear that Guantanamo 
was blockaded? 

Captain of the Adula: Yes. 

Captain of the Vixen: You can proceed on. 

The Adula apparently took this as permission to enter the 
port, although the majority opinion charges her, by reason of 
this conversation, with knowledge that a state of blockade ex- 
isted (which, of course, it did), and insists that it thereby de- 
stroyed any distinction between a proclaimed blockade and an 
actual blockade. 

Guantanamo was then in the possession of the Spaniards, 
but marines had been landed on both sides of the Guantanamo 
Bay. The Adula entered the harbor of Guantanamo and cast 
anchor. She was then seized by the Marhlehead and sent to 
Havana, where she M'as condemned as a prize. The bulk of the 



45 

discussion is to determine whether the agent, the captain or the 
supercargo knew of the de facto blockade of Gnantanamo, and 
actually put to sea with the idea of running the blockade. The 
majority opinion proceeds on the theory that this knowledge 
was in the possession of one or of all of these persons, and that 
therefore from the moment she left Kingston she was guilty of 
a violation of the blockade and subject to captiire ; that she could 
not even approach the blockaded port to make inquiries; that 
because she was chartered to an enemy she became pro hac vice 
an enemy vessel ; and that notice to her charterer of the existence 
of a blockade is notice to the vessel. 

The minority opinion proceeds upon the theory that the block- 
ade of Guantanamo was unlawful because in violation of a declared 
intention of the President limiting the blockade to other ports 
of the coast (the expression of one being the exclusion of the 
other) ; but that even if there was a de facto blockade, the testi- 
mony does not disclose that the Adula knew it and therefore she 
was entitled to warning. The case of the Circassian, 2 "Wall. 135, 
150, is cited to the effect that in cases of simple blockade (estab- 
lished by the act of a naval officer), the captors are bound to 
prove its existence at the time of capture ; but in cases of a pub- 
lic blockade, the claimants are held to proof of discontinuance. 

Note : In the discussion of the case (page 371) is a reference 
to the declaration of Paris of 1856, and a citation from Pistoye 
and Duverdy to the effect that a vessel must be notified to de- 
part before she can be captured, and that the contrary rule was 
the result of the doctrine of the British Orders in Council dur- 
ing the Napoleonic wars. But the court holds, notwithstanding 
this view, that the departure for a blockaded port with intent to 
violate the blockade, renders the vessel liable to seizure. "We 
cannot change our rulings to conform to the opinions of foreign 
writers as to what they suppose to be the existing law upon the 
subject." (371). 

Ouaeee: "Was Article 18 of Jay's treaty of 1794 abrogated 
by the war of 1812? 

The case below is reported in 89 Federal, 351. 

Note: The rules established by these articles are substan- 
tially the rules established by the Courts of the United States. 

VII Moore, 820. 



46 



[BLOCKADE IN TIME OF WAR.] 



Article 17. Neutral vessels may not be captured for breach of blockade 
except within the area of operations of the warships detailed to ren- 
der the blockade effective. 



This modifies the rule, previously obtaining, that the guilt 
followed the vessel until she had reached her home port or had 
finished her voyage; the rule of Art. 17 is a distinct gain for 
neutral commerce. 

The difficulty of defining the ' ' area of operations ' ' is obvious : 
it must depend upon the circumstances of the particular case. 

The Magicienne (not reported in the Federal reports) : An 
English brig, sailing for Matamoras in 1863 was captured off 
the Cape Verde Islands some three thousand miles ( !) from 
the nearest American port apparently by Bear Admiral Bailey, 
commanding the East Gulf blockading squadron. The vessel 
was released but the reason is unknown: perhaps because the 
capture was outside the rayon d' action? 

A. Maxjbice Low. 10 Times His. 916. 



At the conference 1,000 miles was suggested by the American 
conferees. 

In the case of the Baigorry, 2 "Wall., 474, it would seem that 
the vessel had left the blockaded port 600 miles behind: she 
sailed (May 26) from Port Calcasieu and was captured (June 9) 
one hundred miles from Havana, to which she was sailing. 

See Art. 20 post. 

In the case of the Springbok the capture was made 150 miles 
east of Nassau, and consequently at least 300 miles from the 
nearest (Florida) coast of the United States. 

The Bermvda (3 Wall., 514) was captured en route from 
Bermuda to Nassau, within sight of English land, 160 miles 
from the Florida coast and 430 miles from Charleston. 



47 

[BLOCKADE IN TIME OE WAR.] 

Article 18. The blockading forces must not bar access to neutral ports 
or coasts. 



The Peterhopf, 5 Wall., 28 (1866, Chase, C. J.) : 

The Peterhoff, a British steamer sailing from London to 
Matamoras, was captured south of Cuba. The cargo was partly 
neutral and partly contraband. The court found that the procla- 
mation of a blockade of "the whole coast from Chesapeake Bay 
to the Rio Grande" did not include the mouth of the Rio Grande, 
and that notwithstanding that the neutral cargo might have as 
its ultimate destination the City of Brownsville, whither it would 
be carried from Matamoras by inland transportation, the neutral 
cargo was immune, although such trade might be very incon- 
venient to the belligerent and might seriously impair the value 
of the blockade. 

Even the contraband, if really intended for sale in Mata- 
moras, would be free of liability, for contraband may be trans- 
ported by neutrals to a neutral port, if intended to make part of 
its general stock in trade. But here the contraband goods were 
found by the court to be destined for the use of the rebel forces 
in Brownsville. The rule of ulterior destination is this : Neutral 
GOODS are liable to capture only when a violation of a blockade is 
intended; contraband is liable to capture when destined to a 
hostile country or to the actual military or naval use of the 
enemy whether blockaded or not. If the same owner has on 
board both neutral goods and contraband goods, the neutral 
are "infected" by the contraband and share the same fate. 

Hull: Formerly the conveyance of contraband subjected the 
ship to forfeiture, but in more modern times that consequence, 
in ordinary cases, attaches only to the freight of the contraband 
merchandise. 

Costs: The refusal of the captain to send his papers on 
board the cruiser and the destruction of a mysterious parcel was 
not consistent with that frankness and good faith to which neu- 
trals engage in a commerce open to grave suspicion are most 
strongly bound, and costs and expenses went against the ship 
as a condition of her restitution. 



48 



[BLOCKADE IN TIME OF WAR.] 



Article 19. Whatever may be the ulterior destination of a vessel or of 
her cargo, she cannot be captured for breach of blockade, if, at the mo- 
ment, she is on her way to a non-blockaded port. 



[BLOCKADE IN TIME OF WAR.] 

Article 20. A vessel which has broken blockade outward, or which 
has attempted to break blockade inwards, is liable to capture so long 
as she is pursued by a ship of the blockading force. If the pursuit is 
abandoned, or if the blockade is raised, her capture can no longer be 
effected. 

[BLOCKADE IN TIME OF WAR.] 

Article 21. A vessel found guilty of breach of blockade is liable to con- 
demnation. The cargo is also condemned, unless it is proved that at 
the time of the shipment of the goods the shipper neither knew noi^ 
could have known of the intention to break the blockade. 



A blockade runner is purged of her guilt by completing her 
voyage. "The penalty never travels on with the vessel further 
than to the end of the return voyage, and if she is taken in any 
part of that voyage she is taken in delicto." Chancellor Kent; 
cited with approval in the Wren, 6 Wall., 582-588 (1867, Nel- 
son, J.). 



49 
CHAPTER II. 

CONTEABAND OP WAE. 

This war has witnessed the collapse of the limitations sought 
to be imposed by this chapter. And it is obvious that under the 
stress of any great war, classification of goods cannot endure. 
When all the economic as well as the military forces of a coun- 
try are employed, there is nothing worth the cost of transporta- 
tion that is not contraband (Article 33) ; and there is no im- 
portant commercial port in any land that cannot be said to be 
a "fortified place" or "other place serving as a ba^e for the 
armed forces of the enemy" (Art. 34). 

Secretary Madison to Armstrong (1806) : 

The question of contraband is a source and a pretext for 
much vexation to the commerce of neutrals, whilst it is of little 
real importance to the belligerent parties." VII Moore, 656. 

Mr. Madison (Letters and Other Writings, vol. 2, p. 264) 
calls attention to actual treaties in which the right to deal in con- 
traband, notwithstanding the existence of war, is reserved: 
Netherlands and Spain; Netherlands and Portugal; Spain and 
the Hanse Towns. 

Thomas Jefferson to Livingston (VIII Ford Ed., 90) : 

"We believe that the practice of seizing what is called con- 
traband of war, is an abusive practice, not founded in natural 
right. War between two nations cannot diminish the rights of 
the rest of the world remaining at peace. The doctrine that the 
rights of nations remaining quietly under the exercise of moral 
and social duties are to give way to the convenience of those 
who prefer plundering and murdering one another, is a mon- 
strous doctrine ; and ought to yield to the more rational law that 
'the wrongs which two nations endeavor to inflict on each other 
must not infringe on the rights or conveniences of those remain- 
ing at peace'. * * * 

"What is contraband by the law of nature? Either every- 
thing which may aid and comfort the enemy or nothing * * * 
"Either all intercourse must cease between neutrals and 
belligerents or all must be permitted." 

He suggests that the doctrine "Free ships, free goods" arose 
from accident and the particular convenience of Venice and 
Genoa. "Thus it had never been supposed lawful in the terri- 
tory of a friend to seize the goods of an enemy. On an element 



50 

which nature has not subjected to the jurisdiction of any par- 
ticular nation but has made common to all for the purpose to 
which it is fitted, it would seem that the particular portion of it 
which happens to be occupied by the vessel of any nation in the 
course of its voyage is, for the moment, the exclusive property 
of that nation, and, with the vessel, is exempt from intrusion of 
any other, and from its jurisdiction, as much as if it were lying 
in the harbor of its sovereign." 

At the Hague in 1907, Great Britain proposed to do away with 
the capture of contraband altogether, relying upon her power 
to maintain blockade. 






51 

[CONTRABAND OF WAR.] 

Article 22. The following articles may, without notice,* be treated as 
contraband of war, under the name of absolute contraband: — 

(1) Arms of all kinds, including arms for sporting purposes, and 
their distinctive component parts. 

(2) Projectiles, charges, and cartridges of all kinds, and their dis- 
tinctive component parts. 

(3) Powder ajid explosives specially prepared for use in war. 

(4) Gun-mountings, limber boxes, limbers, military wagons, field 
forges, and their distinctive component parts. 

(5) Clothing and equipment of a distinctively military character. 

(6) All kinds of harness of a distinctively military character. 

(7) Saddle, draught, and pack animals suitable for use in war. 

(8) Articles of camp equipment, and their distinctive component 
parts. 

(9) Armour plates. 

(10) Warships, including boats, and their distinctive component 
parts of such a nature that they can only be used on a vessel of war. 

(11) Implements and apparatus designed exclusively for the 
manufacture of munitions of war, for the manufacture or repair of 
arms, or war materials for use on land or sea. 

*In view of the difficulty of finding an exact equivalent in Englisli for the expres- 
sion "de plein druit," it has been decided to translate it by the words "without notice," 
which represent the meaning attached to it by the draftsman as appears from the 
General Report (see p. 44). 

[CONTRABAND OF WAR.] 

Article 23. Articles exclusively used for war may be added to the list 
of absolute contraband by a declaration, which must be notified. 

Such notification must be addressed to the Governments of other 
Powers, or to their representatives accredited to the Power making 
the declaration. A notification made after the outbreak of hostilities 
is addressed only to neutral Powers. 

[CONTRABAND OF WAR.] 

Article 24. The following articles, susceptible of use in war as well as 
for purposes of peace, may, without notice,t be treated as contraband 
of war, under the name of conditional contraband: — 

(1) Foodstuffs. 

(2) Forage and grain, suitable for feeding animals. 

tSee note on Article 22. 



52 

(3) Clothing, fabrics for clothing, and boots and shoes, suitable 
for use in war. 

(4) Gold and silver in coin or bullion; paper money. 

(5) Vehicles of all kinds available for use in war, and their com- 
ponent parts. 

(6) Vessels, craft, and boats of all kinds; floating docks, parts of 
docks and their component parts. 

(7) Railway material, both fixed and rolling-stock, and material 
for telegraphs, wireless telegraphs, and telephones. 

(8) Balloons and flying madiines and their distinctive component 
parts, together with accessories and articles recognizable as intended 
for use in connection with balloons and flying machines. 

(9) Fuel; lubricants, 

(10) Powder and explosives not specially prepared for use in war. 

(11) Barbed wire and implements for fixing and cutting the same. 

(12) Horseshoes and shoeing materials. 

(13) Harness and saddlery. 

(14) Field Glasses, telescopes, chronometers, and all kinds of nau- 
tical instruments. 

[CONTRABAND OF WAR.] 

Article 25. Articles susceptible of use in war as well as for purposes 
of peace, other than those enumerated in Articles 22 and 24, may be 
added to the list of conditional contraband by a declaration, which 
must be notified in the manner provided for in the second paragraph 
of Article 23. 

[CONTRABAND OF WAR.] 

Article 26. If a Power waives, so far as it is concerned, the right to 
treat as contraband of war an article comprised in any of the classes 
enumerated in Articles 22 and 24, such intention shall be announced 
by a declaration, which must be notified in the manner provided for 
in the second paragraph of Article 23. 

[CONTRABAND OF WAR.] 

Article 27. Articles which are not susceptible to use in war may not be 
declared contraband of war. 

The Maeqxjis DB SoMEETJELES, ( Stowell & Munro : War: 180): 
In the war of 1812, the Somerueles was captured on her way to 
Salem, Mass., from Italy. On board was a case containing paint- 
ings and prints: Condemnation refused and the case released. 

"The arts and sciences are admitted amongst all civilized 
nations as forming an exception to the severe rights of warfare 
andasentitledtofavor and protection (181) * * * The public 



53 

standard of morals will therefore always rise with the advance- 
ment of the polite arts * * *. In the United States such im- 
provements are not improbable" (182) [Thanks!] 

The Amelia, Stowell & Munro : War : 183 : Apparently two 
cases of books intended for the University of North Carolina 
had been captured at sea. Released: "But the United States 
are not at war with literature in that part of their territory." 
(Cadwalader, D. J.) 



54 

[CONTRABAND OF WAR.] 

Article 28. The following may not be declared contraband of war: — 

(1) Raiw cotton, wool, silk, jute, flax, hemp, and other raw mate- 
rials of the textile industries, and yams of the same. 

(2) Oil seeds and nuts ; copra. 

(3) Rubber, resins, gums, and lacs; hops. 

(4) Raw hides and horns, bones and ivory. 

(5) Natural and artificial manures, including nitrates and phos- 
phates for agricultural purposes. 

(6) Metallic ores. 

(7) Earths, clays, lime, chalk, stone, including marble, bricks, 
slates, and tiles. 

(8) Chinaware and glass. 

(9) Paper and paper-making materials. 

(10) Soap, paint and colours, including articles exclusively used 
in their manufacture, and varnish. 

(11) Bleaching powder, soda ash, caustic soda, salt cake, am- 
monia, sulphate of ammonia, and sulphate of copper. 

(12) Agricultural, mining, textile, and printing machinery. 

(13) Precious and semi-precious stones, pearls, mother-of-pearl, 
and coral. 

(14) Clocks and watches, other than chronometers. 

(15) Fashion and fancy goods. 

(16) Feathers of all kinds, hairs, and bristles. 

(17) Articles of household furniture and decoration; office fur- 
niture and requisites. 



[CONTRABAND OF WAR.] 

Article 29. Likewise the following may not be treated as contraband 
of war: 

(1) Articles serving exclusively to aid the sick aM wounded. 
They can, however, in case of urgent military necessity and subject to 
the payment of compensation, be requisitioned, if their destination is 
that specified in Article 30. 

(2) Articles intended for the use of the vessel in which they are 
found, as well as those intended for the use of her crew and passen- 
gers during the voyage. 



55 

[CONTRABAND OF WAR.] 

Article 30. Absolute contraband is liable to capture if it is shown to be 
destined to territory belonging^ to or occupied by the enemy, or to the 
armed forces of the enemy. It is immaterial whether the carriage 
of the goods is direct or entails transshipment or a subsequent trans- 
port by land. 

[CONTRABAND OF WAR.] 

Article 31. Proof of the destination specified in Article 30 is complete 
in the following cases: — 

(1) When the goods are documented for discharge in an enemy 
port, or for delivery to the armed forces of the enemy. 

(2) When the vessel is to call at enemy ports only, or when she is 
to touch at an enemy port or meet the armed forces of the enemy be- 
fore reaching the neutral port for which the goods in question are 
documented. 

[CONTRABAND OF WAR.] 

Article 32. Where a vessel is carrying absolute contraband, her papers 
are conclusive proof as to the voyage on which she is engaged, unless 
she is found clearly out of the course indicated by her papers and 
unable to give adequate reasons to justify such deviation. 

[CONTRABAND OF WAR.] 

Article 33. Conditional contraband is liable to capture if it is shown to 
be destined for the use of the armed forces or of a government depart- 
ment of the enemy State, unless in this latter case the circumstances 
show that the goods cannot in fact be used for the purposes of the 
war in progress. This latter exception does not apply to a consign- 
ment coming under Artide 24 (4). 

[CONTRABAND OF WAR.] 

Article 34. The destination referred to in Article 33 is presumed to 
exist if the goods are consigned to enemy authorities, or to a con- 
tractor established in the enemy country who, as a matter of common 
knowledge, supplies articles of this kind to the enemy. A similar 
presumption arises if the goods are consigned to a fortified place be- 
longing to the enemy, or other place serving as a base for the armed 
forces of the enemy. No such presumption, however, arises in the 
case of a merchant vessel bound for one of these places if it is sought 
to prove that she herself is contraband. 

In cases where the above presumptions do not arise, the destination 
is presumed to be innocent. 

The presumptions set up by this Article may be rebutted. 



56 

[CONTRABAND OF WAR.] 

Article 35. Conditional contraband is not liable to capture, except 
when found on board a vessel bound for territory belonging to or oc- 
cupied by the enemy, or for the armed forces of the enemy, and when 
it is not to be discharged in an intervening neutral port. 

The ship's papers are conclusive proof both as to the voyage on 
which the vessel is engaged and as to the port of discharge of the 
goods, unless she is found clearly out of the course indicated by her 
papers, and unable to give adequate reasons to justify such deviation. 

[CONTRABAND OF WAR.] 

Article 36. Notwithstanding the provisions of Article 35, conditional 
contraband, if shown to have the destination referred to in Article 33, 
is liable to capture in cases where the enemy country has no seaboard. 



Continuous Voyage ; Ultimate Destination : 

These Articles modify the American and perhaps the later 
English rules, for Article 35 is inconsistent with the American 
doctrine of continuous voyage and ultimate destination in the 
case of conditional contraband. 

For an admirable summary of the American rule both from 
the legal and the diplomatic aspects, see Stowell and Munro: 
War: 381-405, and VII Moore, 697, et seq. 

The Springbok, 5 Wall. 1 (1866, Chase, C. J.). 

The Springhoh, an English bark, commanded by a son of 
one of the owners, was chartered to T. S. Begbie of London (who 
was the owner of a blockade runner, The Gertrude) to take a 
cargo of lawful merchandise to Nassau. The bills of lading were 
"to order * * * or to * * * assigns". Of the 2,007 
packages the bills disclosed the contents of but 619 and con- 
cealed the contents of 1,388. The owner of cargo had had ex- 
tensive dealings with the confederates and a considerable part 
was obviously contraband. The papers, however, were in per- 
fect order and the vessel made no resistance to capture. 

Nassau was a notorious place of trans-shipment of goods in- 
tended for the confederate service ; was so recognized in diplo- 
matic correspondence and by the Earl Eussell, EngUsh Foreign 
Secretary. 



57 

The ultimate destination of the contraband cargo was held to 
be the confederate government, not by the Springbok, but by 
trans-shiipment — ^probably by the Geirtrude. 

Cargo : Condemned as contraband. 

Hull: Released, but without costs to the claimants. 

The Bermuda, 3 Wall. 514 (1865, Chase, C. J.). 

The greater part of the forty-five pages of this case is taken 
up with a discussion of the facts by which it is established : 

That the ship, nominally owned by a British subject, was in 
fact the property of an enemy (semble) ; 

That the cargo was largely contraband; 

That the ultimate destination of the ship and cargo was 
Charleston, South Carolina, then blockaded, or if otherwise, to 
an intermediate port with intent to send forward the cargo by 
transshipment in a vessel provided for the completion of the 
voyage. 

The court recognized the general rules of law in this lan- 
guage: 

"It is asserted by counsel that a British merchant, as a neu- 
tral, had, during the late civil war, a perfect right to trade, even in 
military stores, between their own ports, and to sell at one of 
them goods of all sorts, even to an enemy of the United States, 
with knowledge of his intent to employ them in rebel war against 
the American government. 

"If by trade between neutral ports is meant real trade, in 
the course of which goods conveyed from one port to another 
become incorporated into the mass of goods for sale in the port 
of destination ; and if by sale to the enemies of the United States 
is meant sale to either belligerent, without partiality to either, 
we accept the proposition of counsel as correct. 

"But if it is intended to affirm that a neutral ship may take 
on a contraband cargo ostensibly for a neutral port, but destined 
in reality for a belligerent port, either by the same ship or by 
another, without becoming liable, from the commencement to the 
end of the voyage, to seizure, in order to the confiscation of the 
cargo, we do not agree to it." 

It makes no difference whether the destination to the rebel 
port was ulterior or direct : if trans-shipment was intended, trans- 
shipment would not break the continuity of transportation of 
the cargo. 

"A transportation from one point to another remains con- 
tinuous so long as intent remains unchanged, no matter what 
stoppages or transshipments intervene." (553) 



58 

It is noteworthy that although the English rule, announced 
as late as 1888 by Professor Holland in his Manual of Naval 
Prise Law,, issued by authority of the English Admiralty, was 
against the American doctrine of continuous voyage, yet twelve 
years later, in 1900, in the case of the Bundesrath, the American 
doctrine was applied to a German vessel sailing from a neutral 
German port to the neutral Portuguese port of Lorenco Marques ; 
and the first to defend the change in the English viewpoint was 
Professor Holland. 

Article 36 no doubt was framed to remove the embarrass- 
ments caused by the Boer war, for the Boers had no seaboard. 
From the English parliamentary debates it appears that Ger- 
man vessels, bound for Delagoa Bay, sailed into the harbor of 
Lorenco Marquez, and landed their cargoes at the railroad docks ; 
that the cargoes, in some instances munitions of war, without 
being unpacked, were loaded into cars and transported into the 
Boer territory under the eyes of and without hindrance from 
English men-of-war. "A blockade was out of the question" 
(Stowell & Munro : War: 409). The English had chaffed under 
the rule of the Springbok; Germany now cited to England her 
own words: There could have been no contraband no matter 
what cargoes the ships carried, for they sail from a neutral port 
to a neutral port, and under the principals of international law, 
there cannot be contraband of war in trade between neutral 
ports; England had declared this to be the law in her Navy 
Manual of 1866. Against the protest of many men in public life 
England released the Bundesrath; the Hersog and others, but 
she did not accept the rule that Germany laid down. 

Stowell & Munro : War : 409. 

The Kim, 1 Treh., 405, (the Packers' cases) the most im- 
portant English contribution to the doctrines of continuous voy- 
age and ultimate destination is worthy of careful consideration ; 
it was argued personally by the Attorney-General and by the 
Solicitor-General of England and a host of distinguished lawyers. 
These four vessels were captured en route to Copenhagen laden 
with lard, meat products, hides, wheat and rubber, all of which 
were, or by declaration had become, absolute contraband. The 
evidence was circumstantial (Denmark's average annual imports 
of lard 1911-1913: 1,459,000 lbs., on these four ships alone: 
19,252,000, or in less than one month, thirteen times the amount 
of the average annual importations, etc., etc., etc., the consign- 
ments were "to order"). Held: good prizes. "If at the time 
of the seizure the goods were in fact on their way to the enemy 
government or its forces as their real ultimate destination by the 
action of the shippers, whenever their project was conceived or 



59 

however it was to be carried out — , if in trutli it is reasonably 
certain that the shippers must have known that that was the 
real ultimate destination of the goods * * * the belligerent 
had a right to stop the goods on their way and to seize them as 
confiscable goods" (489). Sir Samuel Evans, Prest. 

The Hague Tribunal had the opportunity of settling the ques- 
tion in The Caethage: Hague Ct. Reports (Scott) 329, an oppor- 
tunity that it diplomatically sidestepped. 

The rule seems now to be approved by the Institute of Inter- 
national Law (Annuaire, Vol. XV, 231). 

In 1896, in the case of the Doelwijh, Italy, in the Abyssinian 
war, announced the American rule. (2 Oppenheim, 505.) 



60 



[CONTRABAND OF WAR.] 



Article 37. A vessel carrying goods liable to capture as absolute or 
conditional contraband may be captured on the high seas or in the 
territorial waters of the belligerents throughout the whole of her voy- 
age, even if she is to touch at a port of call before reaching the hostile 
destination. 



[CONTRABAND OF WAR.] 

Article 38. A vessel may not be captured on the ground that she has 
carried contraband on a previous occasion if such carriage is in point 
of fact at an end. 



[CONTRABAND OF WAR.] 

Article 39. Contraband goods are liable to condemnation. 

[CONTRABAND OF WAR.] 

Article 40. A vessel carrying contraband may be condemned if the 
contraband, reckoned either by value, weight, volume, or freight, 
forms more than half the cargo. 

[CONTRABAND OF WAR.] 

Article 41. If a vessel carrying contraband is released, she may be 
condemned to pay the costs and expenses incurred by the captor in 
respect of the proceedings in the national prize court and the custody 
of the ship and cargo during the proceedings. 

[CONTRABAND OF WAR.] 

Article 42. Goods which belong to the owner of the contraband and are 
on board the same vessel are liable to condemnation. 



The sources of the rule announced in Article 40 may be found 
in the Eussian Prize Eegulation; they are not to be found in 
the American or in English cases prior to the Declaration of 
London. 



61 

The case of the Knight Commandbe (Sunk in 1904 during the 
Eusso-Japanese war) : 

The Knight Commander, of 4,306 tons burden, a British ship, 
was on her way from Hoboken to Japan with a miscellaneous 
cargo on board. She was required to stop by ships of the Rus- 
sian Vladivostok Squadron, was boarded and perfunctorily ex- 
amined. Her crew were taken off and she was sunk by shell fire. 
The British crew were taken to Vladivostok and the native crew 
were put on a passing vessel. 

138 Pari. Deb., IV Series, p. 1435-6. 

The provisions of Rule 6 of the Russian Regulations defining 
contraband are most comprehensive: 

Every kind of fuel, including coal and naphtha. (Sub-Sec. 8) . 

Everything intended for warfare by sea or land, as well as 
rice, provisions, horses, beasts of burden and others which may 
be used for warlike purposes if they are transported on account 
of or are destined for the enemy. (Sub-Sec. 10.) 

Article XXI of the Russian Regulations seems to permit the 
sinking of neutral carriers of contraband. 
140 Pari. Deb., IV Series, 156-157. 
VII Moore, 518-520. 

On appeal from the decision of the prize court at Vladivostok, 
the Supreme Prize Court at St. Petersburg held that a large part 
of the cargo was contraband; that this portion of the cargo ex- 
ceeded one-half of the total cargo ; that the ship was rightly de- 
clared a prize under the Russian rule; that the commander's 
action in sinking the vessel is not a circumstance for the prize 
court to deal with at all, but a matter of naval discipline ; that 
the Russian naval prize code contemplates the sinking of neutral 
ships as well as enemy ships, and behind that code the court 
cannot go, despite all that may have been written by interna- 
tional lawyers on the subject; that where the destruction of a 
vessel is necessary in the interests of a belligerent, parties inter- 
ested ought not to suffer; but as ship and cargo have been ad- 
judged prizes, the chief loss falls on the state and owners of 
innocent property must recover compensation by initiating claims 
before the prize court. 

157 Pari. Deb., IV Series, 37-38. 

The State Department at Washington heard that the Knight 
Commander was sunk for want of coal to take her to Vladivostok, 
and expressed the view that the sinking of the vessel was not 
justified by the mere fact that she had contraband aboard. 

VII Moore 519-520. 



62 

For another account, see Stowell and Munro: Cases, War 
and Neutrality, 513. 

It subsequently appeared that the English government re- 
quested the Russian Government to submit this controversy to 
the Hague ; but that the Russian Grovernment declined. 

The Lorenzo, 1 Trehern 226, was one of the ships that accom- 
panied the Thor (q. v.). She was chartered by the Hamburg- 
Amerika Line to carry coal from New York to Buenos Ayres for 
which port she ostensibly cleared Aug. 6, 1914, but under the 
orders of her super cargo lay to awaiting the German cruiser 
Karlsruhe, to coal her. 

Held: Under Article 40, D of L, she was a good prize as 
more than half her cargo was contraband, notwithstanding that 
the owners did not know of her change of destination. 

Note: The fate of the innocent owner is no worse than the 
fate of the innocent mortgagee, even though he be an English sub- 
ject : the decree of condemnation destroys his mortgage. 

The Emil, 1 Trehern, 257. 

And the holders (pledgees) for value of the Bills of Lading 
are in the same plight. 

The Odessa, 1 Treh., 554. 

And the shipper of goods, innocent when shipped, contraband 
when captured, partially paid for, when the title had passed, is 
without remedy. 

The Sorfaeeeen, 1 Treh., 589. 

Art. 42: "Infection." 

The Petebhoff, 5 Wall., 59. 

The Keonprinsbssan Maegareta, 2 B. & C. P. C, 409. 
"The rule has come from ancient times right down to the 
days of the Declaration of London." 



63 

[CONTRABAND OF WAR.J 

Article 43. If a vessel is encountered at sea while unaware of the out- 
break of hostilities or of the declaration of contraband which applies 
to her cargo, the contraband cannot be condemned except on payment 
of compensation; the vessel herself and the remainder of the cargo are 
not liable to condemnation or to the costs and expenses referred to 
in Article 41. The same rule applies if the master, after becoming 
aware of the outbreak of hostilities, or of the declaration of contra- 
band, has had no opportunity of discharging the contraband. 

A vessel is deemed to be aware of the existence of a state of war, 
or of a declaration of contraband, if she left a neutral port subse- 
quently to the notification to the Power to which such port belongs 
of the outbreak of hostilities or of the declaration of contra- 
band respectively, provided that such notification was made in suffi- 
cient time. A vessel is also deemed to be aware of the existence of a 
state of war if she left an enemy port after the outbreak of hostilities. 



[CONTRABAND OF WAR.] 

Article 44. A vessel which has been stopped on the ground that she is 
carrying contraband, and which is not liable to condemnation on ac- 
count of the proportion of contraband on board, may, when the cir- 
cumstances permit, be allowed to continue her voyage if the master is 
willing to hand over the contraband to the belligerent warship. 

The delivery of the contraband must be entered by the captor on 
the logbook of the vessel stopped and the master must give the captor 
duly certified copies of all relevant papers. 

The captor is at liberty to destroy the contraband that has been 
handed over to him under these conditions. 

Article 43 applies only to ships other than enemy ships. The 
Leda, 1 Trehern, 233. 



64 



CHAPTER III. 

[UNNEUTEAL SERVICE.] 

Article 45. A neutral vessel will be condemned and will, in a general 
way, receive the same treatment as a neutral vessel liable to condem- 
nation for carriage of contraband: — 

(1) If she is on a voyage specially undertaken with a view to the 
transport of individual passengers who are embodied in the armed 
forces of the enemy, or with a view to the transmission of intelli- 
gence in the interest of the enemy. 

(2) If, to the knowledge of either the owner, the charterer, or the 
master, she is transporting a military detachment of the enemy, or 
one or more persons who, in the course of the voyage, directly assist 
the operations of the enemy. 

In the cases specified under the above heads, goods belonging to 
the owner of the vessel are likewise liable to condemnation. 

The provisions of the present Article do not apply if the vessel is 
encountered at sea while unaware of the outbreak of hostilities, or if 
the master, after becoming aware of the outbreak of hostilities, has 
had no opportunity of disembarking the passengers. The vessel is 
deemed to be aware of the existence of a state of war if she left an 
enemy port subsequently to the outbreak of hostilities, or a neutral 
port subsequently to the notification of the outbreak of hostilities to 
the Power to which such port belongs, provided that such notification 
was made in sufficient time. 



[UNNEUTRAL SERVICE.] 

Article 46. A neutral vessel will be condemned and, in a general way, 
receive the same treatment as would be applicable to her if she were 
an enemy merchant vessel: 

(1) If she takes a direct part in the hostilities; 

(2) If she is under the orders or control of an agent placed on 
board by the enemy Government; 

(3) If she is in the exclusive employment of the enemy Govern- 
ment; 

(4) If she is exclusively engaged at the time either in the trans- 
port of enemy troops or in the transmission of intelligence in the in- 
terest of the enemy. 

In the cases covered by the present Article, goods belonging to the 
owner of the vessel are likewise liable to condemnation. 



65 

The Hanambtal, 1 Treh., 347, was an American vessel, wliicli 
had changed her British officers for German, was on her way 
to Tsing-tao, a German port, and soon, as it afterwards ap- 
peared, to be blockaded; but then open. The purpose of the 
trip was to carry away refugees. But the German master was 
found to be acting for the American owner, and under his con- 
trol, and not for the German Government; and the vessel was 
released (August, 1914). 

The Zambesi, 1 Treh., 358, a British boat, lay adrift off 
Nauru, a German island in the Pacific Ocean, waiting to land her 
cargo and ignorant (Aug. 6, 1914), that war had broken out be- 
tween England and Germany. The German agent at Nauru 
had learned by wireless of the war and desired to communicate 
dispatches of importance to his chief at another German island 
in the vicinity, with which communication by wireless had failed. 
Concealing the fact that England was in the war, the German 
agent chartered the Zambesi to carry the dispatches. Captured 
by the Encounter, the dispatches were seized and the vessel held 
a good prize under Article 45 Supra, notwithstanding the hard- 
ship to the owners. 

"In the sarhe manner, in cases of bona fide ignorance, there 
may be no actual delinquency, but if the service is injurious, that 
will be sufficient to give the belligerent a right to prevent the 
thing from being done, or at least repeated, by enforcing the 
penalty of confiscation." In this case the ship, an American 
vessel, had been chartered (but under a fictitious charter-party), 
to convey ' ' three military officers of distinction and two persons 
employed in the civil departments," enemies, to an enemy port. 

The Obozembo, 6 C. Rob., 430-434, Sir William Scott, J. 

But where the Pontopoeos, a Greek steamer, carrying coal 
(contraband) for England (1 Treh., 371), which had been taken 
by a German cruiser, the Emden, put in charge of a German of- 
ficer and thirteen Germans (engineers and crew) and required to 
follow the Emden and supply her with coal, was recaptured by 
an English cruiser : Held : No unneutral service : vessel released. 

"Articles 45, 46 and 47 are all grouped under the heading 
'Unneutral Service,' or 'assistance hostile,' and in my opinion 
the use of that term implies ^ome act or acts in violation of neu- 
trality on the part of a neutral having authority over the neutral 
vessel, and the existence of some contractual relation, such as 
that of employer and employee, between the belligerent and such 
neutral. No such relation existed in this case (the Pontoporos). 
It is said that, while Article 45 speaks of knowledge on the part 
of the owner, charterer or master. Article 46 omits knowledge, 
and that therefore knowledge is not required on the part of these 



66 

persons. Yet it is admitted that the offences contemplated un- 
der Article 46 are more serious than those under Article 45. I 
am satisfied that the construction put by Mr. Oppenheim on 
Article 46 in the passage referred to by counsel for the ship 
owners on page 528, that mens rea is obviously always in exist- 
ence and therefore always presumed to be present, is the only 
reasonable construction of that article" ( Woodward, acting 0. J.) 
384. > & J 

The Thob; 1 Trehern, 229 (194 Colleb, C. J.) : Aug. 3, 1914, 
the Thor, a Norwegian steamer M^as at Newport News loading 
coal for Uruguay. Apparently that day she was chartered by 
the Hamburg-American line, who put her under the orders of a 
supercargo and from Aug. 9 to Aug. 26, in company with Ger- 
man colliers, she steamed up and down "waiting for something 
to coal." She was captured by the Berwick and taken to St. 
Lucia, and was held a good prize. 

1. Inasmuch as she left Newport News before the declara- 
tion of war, she was exempt from confiscation for carriage of 
contraband ; 

2. The English rule (since 1811) is : "A neutral vessel char- 
tered or employed by a belligerent government to carry a cargo 
on its behalf and acting under the orders or direction of that 
government or of its officers, is liable to condemnation as an 
enemy ship, together with the cargo so carried." (The Eebecca, 
2 Acton, 119) ; 

3. "The formula submitted to the Conference [of London] 
was more epigrammatic but equally effective; it provided that 
merchant vessels 'entierement ou specialement au service du 
belligerant ennemi' should lose their neutral character. * * * 
Ultimately the new rule emerged (so far as relevant) in this 
form: 'A neutral vessel is liable to condemnation. * * * 
(2) If she is under the orders or control of an agent placed on 
board by the enemy government; (3) If she is in the exclusive 
employment of the enemy government.' I confess, with great 
respect, that I do not think the change altogether happy, nor 
do I find the rule, as enunciated, particularly clear. ' ' But, upon, 
consulting the official commentary : ' Such is the position of col- 
liers which accompany a hostile fleet/' the court reached the 
conclusion that the Thor was within the rule, although she had 
not accompanied a hostile fleet, but had merely attempted to 
do so. 



67 



[UNNEUTKAL SERVICE.] 



Article 47. Any individual embodied in the armed forces of the enemy 
who is found on board a neutral merchant vessel, may be made a 
prisoner of war, even though there be no ground for the capture of 
the vessel. 



It should be borne in mind that the provisions of Chapter III 
are independent of and additional to the municipal laws of the 
several nations for the observation of neutrality. Nevertheless, 
where the provisions of the two systems run in parallel lines, 
Chapter III will doubtless be held to carry with it as canons of 
interpretation all the existing judicial interpretation. 

A group of cases involving unneutral service arose out of 
the Cuban Eevolution: 

United States v. Pena, 69 Federal, 983 (1895, Wales, D. J.), 

(charging jury). Men and arms. 
United States v. Hughes, 70 Federal, 972 (1895, Brawley, J.). 

Aiding military expedition. Men and arms. 
United States v. Wiborg, 163 U. S. 632 (1896, Fuller, C. J.), 

reported below as 73 Federal, 159 (1896, Butler, D. J.), 

(charging jury). Men and arms. 
United States v. Haet, 74 Federal, 724 (1896, Brown, D. J.). 

Men and arms. 
United States v. Hughes, 75 Federal, 267 (Brawley, D. J.), 

(charging jury). Men and arms. 
United States v. Hart, 78 Federal, 686 (1897, Butler, D. J.), 

(charging jury). Men and arms; also 
Hart v. United States, 84 Fed. 799 (1898, C. C. A. Error to 78 

Fed. 868). Men and arms. 
The Three Friends, 78 Fed. 175 (1897, Locke, D. J.). Fitting 

out vessel. 
The Three Friends, 89 Fed. 207 (1898, C. C. A. Appeal from 78 

Fed. 173). Fitting out vessel. 
The Three Friends, 166 U. S. 1 (1897, Fuller, C. J.). 
United States v. Nunez, 82 Fed. 599 (Brown, D. J»). Men and 

arms. 
United States v. Murphy, 84 Fed. 609 (1898, Braadford, D. J.). 

Men and arms. 



68 

The Latjbada, 85, Fed. 760 (1898, Bradford, D. J.). Men and 
arms. 

The Laxjkada, 98 Fed. 983 (1900). Appeal from 85 Fed. 760. 

When these cases were decided (and since 1818), our neu- 
trality laws (E. S. U. S. 5281-5291), forbade: 

(1) A citizen of the U. S. and within its territory or juris- 
diction to accept and exercise a commission to serve a foreign 
prince, state, colony, district or people against a foreign prince, 
etc., with whom U. S. are at peace (5281). 

(2) All persons within the territory or jurisdiction of the 
U. S. to enlist or to hire or to retain others to enlist or to go 
beyond the limits of the U. S. to enlist (5282). 

(3) Every person within the limits of the U. S. to fit out 
and arm or to attempt to fit out and arm, or to procure to be 
fitted out and armed, or knowingly to be concerned in the fur- 
nishing, fitting out and arming of a vessel to be employed in 
the service of a foreign prince, etc., or to cruise against the sub- 
jects of any foreign prince, etc., with whom the United States 
is at peace. Or to deliver a commission within the territory of 
the U. S. to the intent that she may be so employed; and as a 
penalty for the violation, provided for the forfeiture of the guilty 
vessel (5283). 

Note : Upon this section were based the in rem proceedings 
hereinafter referred to. 

(4) Citizens, without the limits of the U. S. to fit out and 
arm, attempt to fit out and arm, or procure to be fitted out and 
armed, or knowingly to aid or to be concerned in furnishing, 
fitting out or arming a privateer to cruise against citizens or 
their property or to take command of or to board such a vessel 
for such a purpose or to purchase an interest therein with a view 
to profit thereby (5284). 

(5) Every person within the territory of the United States 
to increase or augment, or to procure to be increased or aug- 
mented, or be interested in increasing and augmenting the force 
of a ship of war of any forei^ prince, etc., or his subjects at 
war with any foreign prince with whom U. S. are at peace, by 
adding guns or military equipment (5285) ; 

The section under which most of the indictments were brought 
is the next (5286), which reads: 

Sec. 5286. Every person who, within the territory or juris- 
diction of the United States, begins, or sets on foot, or provides 
or prepares the means for, any military expedition or enter- 
prise, to be carried on from thence against the territory or do- 



69 

minions of any foreign prince or state, or of any colony, district, 
or people, with whom the United States are at peace, shall he 
deemed guilty of a high misdemeanor, and shall he fined not 
exceeding three thousand dollars, and imprisoned not more than 
three years." 

From the report accompanying the Declaration, the scope of 
the phrase "embodied in the akmed foeces of the enemy" seems 
to have been purposely left in doubt. It is stated: "Supposing 
the case is one of individuals who are natives of a continental 
European country and are settled in America ; these individuals 
have military obligations toward their country of origin; they 
have, for instance, to belong to the reserve of the active army of 
that country. Their country is at war and they sail to perform 
their service. Shall they be considered as embodied in the sense 
of the provision which we are discussing?" 

The question thus avoided by the conference, arose at the out- 
break of the present war. In response to a direct inquiry, Secre- 
tary Bryan wrote Senator Stone, January 20, 1915 (2 Times 
Hist., 1175-81) (following a precedent of Secretary Fish) : 

"(16) Failure to prevent transshipment of British troops 
and war materials across the territory/ of the United States. 

' ' The department has had no specific case of the passage of 
convoys or troops across American territory brought to its no- 
tice. There have been rumors to this effect, but no actual facts 
have been presented. The transshipment of reservists of all 
belligerents who have requested the privilege has been permitted 
on the condition that they travel as individuals and not as an 
organized, uniformed or armed body. The German Embassy has 
advised the department that it would not be likely to avail itself 
of the privilege, but Germany's ally, Austro-Hungary, did so. 

"Only one case raising the question of the transit of war 
material' owned by a belligerent across United States territory 
has come to the Department's notice. This was a request on 
the part of the Canadian Government for permission to ship 
equipment across Alaska to the sea. The request was refused." 

In 1870 about 1200 Frenchmen embarked at New York in the 
Lafayette and Ville de Paris for the purpose of joining the 
armies of their nation at home. They were not officered nor m 
any way organized, but the vessel was laden with 96,000 rifles 
and 11,000,000 cartridges. Mr. Fish, then Secretary of State, was 
of the opinion that the ship could not be looked upon as intended 
to be used for hostile purposes against Germany; the men not 
being in an efficient state and the arms and ammunition being in 
themselves legitimate commerce. ' ' The uncombined elements of 
an expedition may leave a neutral state in company with one 



70 

another, provided they are incapable of proximate combination 
into an organized whole." It would be different if the men had 
previously received such military training as would have ren- 
dered them fit for closely proximate employment. (United 
States V. Hughes, 70 Fed. Rep., 972-075.) 

Note, however, that Chief Justice Fuller, in Wiborg v. United 
States, 163 U. S., 632-652, adds a further fact which the trial 
judge did not state : namely, that the passengers had no access to 
the arms and ammunition any more than an ordinary passenger 
on an ocean steamer has access to any part of the cargo (p. 652) . 

The articles of this Chapter might be defined as the Filibuster- 
ing Articles. They were no doubt inserted to put at rest by 
express provisions of international law questions arising acutely 
in 1895-1898 — the period of the Cuban insurrection. 

It will be recalled that some seventy-one (71) expeditions 
were fitted out in the United States to aid the Cuban insurgents. 
Of these, twenty-seven were successful ; thirty-three were stopped 
by the IJnited States Grovernment; five were captured or de- 
feated by Spain; two were prevented by England, and four by 
storms. Thirty-one separate vessels were engaged. The "pas- 
sengers" were generally Cubans returning from exile. 

Benton: Int. Law & Dip. of the Spanish- American War, 
42 et passim. 

The Theee Friends, 166 U. S., 1 (1897, Fuller, C. J.) : 

In 1895 (June 12), a formal proclamation was issued by the 
President informing the people of the United States that the 
island of Cuba "was the seat of serious civil disturbances, ac- 
companied by armed resistance to the authority of the estab- 
lished government of Spain", and declaring that the neutrality 
laws of the country prohibited participation therein ; in his an- 
nual message of December 2, 1895, and in a proclamation of 
July 27, 1896, he again brought the Cuban situation before the 
nation. But the Cuban insurrectos were not recognized as bellig- 
erents. November 7, 1896, the Three Friends was seized and five 
days later was libeled under Section 5283 R. S. U. S. 

The case was equally embarrassing to the claimant and to 
the government. 

The claimant was guilty either as a filibuster under Section 
5283 or, under international law, as a pirate ; while the govern- 
ment, if it did not recognize the Cuban revolutionists as bellig- 
erents might be liable for breaches of neutrality, should it fail 
in the performance of its duties to a friendly power, while if it 
did recognize them as belligerents, it also recognized coincidently 



71 

a state of war which involved the right of blockade, and of search, 
and of the seizure of contraband. 

The contention that there could be no offense under Sec. 5283 
until after the belligerency of the Cubans had been recognized by 
the Government of the United States was denied and the libel 
was upheld. 

WiBOEG V. United States, 163 U. S., 632 (1896, Fuller, C. J., Har- 
lan, J., dissenting) : 

Indictment under Section 5286 for setting on foot a certain 
"military expedition and enterprise", etc. 

From a verdict of guilty Wiborg appeals. He was master of 
the Rorsa, in the fruit trade for Hart & Company of Philadelphia. 
In November, 1895, he cleared from Philadelphia for Jamaica 
with but little cargo. The owners instructed him after he had 
passed the Bireakwater to proceed north near Barnegat and 
await further orders. Accordingly after passing Delaware 
Breakwater he turned to the north and anchored over three 
miles from land off Barnegat light. That night a lighter from 
Brooklyn laden with cases of goods and two life boats, and carry- 
ing between thirty and forty passengers, mostly dark complex- 
ioned men speaking a foreign language, apparently Cubans or 
Spaniards, under a white flag, approached the Horsa, which 
also flew a white flag. The master states that his orders were to 
deliver the two boats and also two boats that he had shipped 
from Philadelphia, to the men, and that he should disembark 
them wherever a colored man, called the pilot, directed. 

After boarding the Horsa the newcomers broke open the boxes 
and took out rifles, swords, machetes and one cannon. They also 
took cartridge belts, medicines and bandages. They were not in 
uniform, but some of them had caps with a little flag which they 
said was a Cuban flag. They divided up the arms, each man 
taking a rifle; certain of them, understood to be officers, took 
swords and revolvers ; one seemed to be in command ; there were 
some military exercises in the nature of a drill by three to seven 
men at a time ; they stated they were going to Cuba to fight the 
Spaniards ; they made small canvas bags to put the cartridges 
in; they practiced with the rifle, the sword, the machete and 
with the cannon. The Horsa changed the colors on her funnel at 
sea and painted out her name amidships. About six miles off 
the coast of Cuba the colored pilot gave orders to disembark. 
The Horsa' s lights were put out, the passengers took to the boats, 
taking all the ammunition and arms they could carry. Some 
forty boxes of cartridges were left on the Horsa because there 
was no room for them, and Captain Wiborg directed these to be 
thrown overboard. 



72 

Held : The jury was justified in finding that this constituted 
a military expedition or enterprise against the territory of the 
King of Spain. 

United States v. Haet, 74 Fed. Eep., 724 (1896, Brown, D. J.) : 

This expedition, which was to have been carried by the Ber- 
muda, was broken up before it left New York. The court in charg- 
ing the jury stated that to fall within the statute the expedition 
must be military and carried on from this country ; and that a 
mere lawful intent to enlist abroad could not give the voyage a 
military character. The fundamental idea of a military enterprise 
or expedition to be carried on from this country is that it should 
be undertaken (1) by soldiers; (2) under officers and the duty of 
military obedience; (3) armed with appropriate weapons; 
(4) bound together by a unified organization under a definite 
command; (5) with a military or hostile purpose of attack or 
defense. 

The latest case seems to be The Lucy H., 235 Fed., 610 : Libel 
of information and seizure maritime for violation of neutrality 
laws. 

In September, 1915, the American schooner Lucy H., in Pensa- 
cola, Florida, took on board, besides a crew of nine men and six- 
teen Mexicans, a cargo of 162 rifles and 25,000 rounds of ammu- 
nition. The vessel then proceeded to Key West, where two more 
cases of rifles and a quantity of stores were added to the cargo. 

October 19 she sailed from Key West in an unauthorized man- 
ner toward Tuxpam, Mexico, where ultimately the Mexicans and 
the cargo were landed. Upon her return she was libelled under 
Section 11 of the Penal Code of 1910, Compiled Statutes 1913, 
Section 175, which provides for the forfeiture by every vessel 
which, in the territory of the United States, is fitted out to be 
employed in the service of any foreign prince or state, or of any 
colony, district or people, to cruise or commit hostilities against 
the subjects, citizens, or property of any foreign prince or state, 
or of any colony, district, or people, with whom the United States 
are at peace. Exceptions were filed to the libel on two grounds : 
That the vessel was not in the service of any foreign prince or 
state, and was not fitted out to commit hostilities against the 
subjects of any foreign prince or state, etc., for the reason that 
the situation in Mexico involved merely a controversy of one 
set of bandits against another set of bandits. The exceptions 
were not well taken and ordered overruled on the authority of 
The Three Friends, 166 U. S., 1. 

Wiborg V. U. S., 163 U. S., 647. 

Article 47 is cited in the Manouba case : The Hague Court 
Reports, Scott, 339. See Ante under Article 7. 

QuAEEE : The Trent Affair : Could either Mason or Slidell be 
regarded as "embodied in the armed forces" of the enemy I Prob- 
ably not. 

Cf . Stowell & Munro : War : 458. 



73 



CHAPTER IV. 



[DESTRUCTION OF NEUTRAL PRIZES.] 



Article 48, A neutral vessel which has been captured may not be de- 
stroyed by the captor; she must be taken into such port as is proper 
for the determination there of all questions concerning the validity of 
the capture. 



[DESTRUCTION OF NEUTRAL PRIZES.] 

Article 49. As an exception, a neutral vessel which has been captured 
by a belligerent warship, and which would be liable to condemnation, 
may be destroyed if the observance of Article 48 wotlld involve dan- 
ger to the safety of the warship or to the success of the operations in 
which she is engaged at the time. 



[DESTRUCTION OF NEUTRAL PRIZES.] 

Article 50. Before the vessel is destroyed all persons on board must 
be placed in safety, and all the ship's papers and other documents 
which the parties interested consider relevant for the purpose of de- 
ciding on the validity of the capture must be taken on board the war- 
ship. 



[DESTRUCTION OF NEUTRAL PRIZES.] 

Article 51. A captor who has destroyed a neutral vessel must, prior to 
any decision respecting the validity of the priae, estabhsh that he only 
acted in the face of an exceptional necessity of the nature contem- 
plated in Article 49. If he fails to do this, he must compensate the 
parties interested and no examination shall be made of the question 
whether the capture was valid or not. 



[DESTRUCTION OF NEUTRAL PRIZES.] 

Article 52. If the capture of a neutral vessel is subsequently held to be 
invalid, though the act of destruction has been held to have beem 
justifiable, the captor must pay compensation to the parties inter- 
ested, in place of the restitution to whichthey would have been en- 
titled. 



74 



[DESTRUCTION OF NEUTRAL PRIZES.] 



Article 53. K neutral goods not liable to condemnation have been de- 
stroyed with the vessel, the owner of such goods is entitled to com- 
pensation. 



[DESTRUCTION OF NEUTRAL PRIZES.] 

Article 54. The captor has the right to demand the handing over, or to 
proceed himself to the destruction of, any goods liable to condemna- 
tion found on board a vessel not herself liable to condemnation, pro- 
vided that the circumstances are such as would, under Article 49, 
justify the destruction of a vessel herself liable to condemnation. The 
captor must enter the goods siirrendered or destroyed in the logbook 
of the vessel stopped, and must obtain duly certified copies of all rele- 
vant papers. When the goods have been handed over or destroyed, 
and the formalities duly carried out, the master must be allowed to 
continue his voyage. 

The provisions of Article 51 and 52 respecting the obligations of a 
captor who has destroyed a neutral vessel are applicable. 



The war vessels of a belligerent may have as prize : 

1. A warship of the enemy; 

2. An enemy merchantman; 

3. A neutral merchantman that is captured breaking block- 
ade or carrying contraband. 

Chapter IV of the Declaration of London has to do with the 
destruction of neutral prizes ; and it would seem clear that if the 
right exists to destroy a neutral merchantman the right also 
exists to destroy an enemy merchantman. Of the right to de- 
stroy a captured enemy warship there can be no doubt. 

The United States Navy was negligible till the beginning of 
the last century. In the war of 1812 (VII Moore, 516), enemy 
prizes were destroyed under specific instructions to individual 
commanders, but not under general orders. Unquestionably, 
however, the executive department countenanced if, it did not 
direct the policy of destruction, both because America was fight- 
ing against a navy much stronger than her own, and because 
"the comm"erce of the enemy is the most vulnerable point we can 
attack" (Sept. 19, 1813, Secretary of the Navy to Stewart). 



75 

The question seems not to have arisen acutely in the Mexi- 
can War or in the War of the Rebellion. 

By General Order 492, 1898, (sec. 28), the Navy Depart- 
ment permits the sinking of a prize (whether belligerent or neu- 
tral) if she is unseaworthy; or infected with disease; or is in 
danger of recapture; or if a prize crew is lacking. The Santo 
Domingo, 119 Fed. 386 (where the vessel was armed and in im- 
minent danger of recapture). 

The Naval War Code (Stockton) of 1900 contained a similar 
provision ; but it was recalled in 1904. 

So far as the Navy Department is concerned, its traditions 
seem to countenance the sinking of prizes. But it is doubted if 
Congress or the courts have taken that stand in the case of either 
enemy or neutral merchantmen. 

Jackson v. Montgomery, 13 Howard, 498 (1851, Taney, C. J.), 
is usually supposed to justify the sinking of a neutral prize at 
sea. The claim that this case so holds may be doubted. The 
Admittance, an American vessel, was found at San Jose on the 
coast of California, trading, it was alleged, with the enemy, by 
the Portsm,out'h, which took her to a prize court at Monterey, 
California, where she was held a good prize and was sold and 
the proceeds lodged with the Secretary of the Treasury pending 
the determination of proceeds. Jackson filed in the District of 
Columbia his libel against Montgomery, captain of the Ports- 
mouth, alleging that the capture was unlawful and the Monterey 
court without jurisdiction. The Act of Congress (Prize Section 
4613 et seq.) requires the captor to bring the prize within the 
jurisdiction of a prize court ; and this is the rule of International 
Law "which in all civilized countries secures to the captured a 
trial in a court of competent jurisdiction before he can finally 
be deprived of his property" (516). But when this is impos- 
sible he may "sell or otherwise dispose of the property before 
condemnation. And where the commander of a national ship 
cannot without weakening inconveniently the force under his 
command, spare a sufficient prize crew to man the captured ves- 
sel ; or where orders of his government prohibit him from doing 
so, he may lawfully sell or otherwise dispose of the captured 
property in a foreign country; and may afterwards proceed to 
adjudication in a court of the United States." It is doubted if 
'/otherwise dispose of" is the equivalent of "sink." 

It is probable that the lack of accessible ports into which the 
prizes might safely be sent for condemnation, is the reason for 
the regulation of Germany and Eussia permitting the practice 
of sinking prizes. See the Knight Commander, supra. What 
disposition, for example, could the Prinz Friedrich have made 



76 

of the Frye? It is perhaps too much to expect of the naval or- 
ganization of a nation that it will hamper itself with the duty 
of saving from destruction merchantmen prizes. 

That the English practice is not in accordance with the rule 
of Chapter IV has been asserted within the last few months by- 
England's Attorney-General, Sir Frederick Smith: The De- 
struction of Merchant Ships under International Law. (Dent.) 

The SINKING OF NEUTEAL PRIZES is Said to be justified by the 
regulations of Japan and France ; the Institute of International 
Law has declined to condemn it. 

Westlake: Collected Papers, 661. 

The case for the neutral is well put by the Marquess of Lans- 
down (Vol. 140, Parliamentary Debates, IV Series, p. 158) : 

"Let your Lordships imagine, for example, what would be 
the result were one cruiser operating at a distance from her 
base to seize and sink on the spot a number of neutral vessels 
simply on the ground that those neutral vessels had not on 
board of them as sufficient amount of coal to carry them to the 
port from which the belligerent cruiser had started; or again, 
we might find ourselves confounded with this result that a 
cruiser, starting with a crew sufficient only for the purpose of 
navigating her and consequently not having on board any men 
whom she could spare for the purpose of a prize crew, might 
sink every prize she took, merely on the ground that there was 
no means of conveying that prize before a prize court. I am 
speaking, of course, of neutral prizes because the case of enemy 
prizes is wholly different." 

The other view is thus stated, with his approval, by Professor 
Moore : 

"Let us take, for example, the case of a neutral vessel, laden 
with a cargo of arms and munitions of war which is captured 
by a cruiser of one belligerent while approaching a port of 
another. Soon afterwards a superior force of the latter bellig- 
erent appears so that the only way to prevent the arms- and 
munitions of war from being conducted to their hostile destina- 
tion is to burn or sink the vessel in which they are borne. Is 
the captor bound under such circumstances practically to hand 
over the vessel and cargo to his enemy?" 

I am free to say that I think that he is ! 



77 



CHAPTER V. 

[TRANSFER TO A NEUTRAL FLAG.] 

Article 55. The transfer of an enemy vessel to a neutral flag, effected 
before the outbreak of hostilities, is valid, unless it is proved that such 
transfer was made in order to evade the consequences to which aii 
enemy vessel, as such, is exposed. There is, however, a presumption, 
if the bill of sale is not on board a vessel which has lost her belliger- 
ent nationality less than sixty days before the outbreak of hostilities, 
that the transfer is void. This presumption may be rebutted. 

Where the transfer was effected more than thirty days before the 
outbreak of hostilities, there is an absolute presumption that it is 
valid if it is unconditional, complete, and in conformity wit^ the 
laws of the countries concerned, and if its effect is such that neither 
the control of, nor the profits arising from the employment of, the 
vessel remain in the same hands as before the transfer. If, however, 
the vessel lost her belligerent nationality less than sixty days before 
the outbreak of hostilities and if the bill of sale is not on board, the 
capture of the vessel gives no right to damages. 

[TRANSFER TO A NEUTRAL FLAG.] 

Article 56. The transfer of an enemy vessel to a neutral flag effected 

after the outbreak of hostilities, is void unless it is proved that such 

transfer was not made in order to evade the consequences to which 

an enemy vessel, as such, is exposed. 

There, however, is an absolute presumption that a transfer is void: 

(1) If the transfer has been made during a voyage or in a block- 
aded port. 

(2) If a right to repurchase or recover the vessel is reserved to 
the vendor. 

(3) If the requirements of the municipal law governing the right 
to fly the flag under which the vessel is sailing, have not been fulfilled. 



The provisions of these two Articles work a substantial 
change in the law, both of England and the United States. The 
imminence of war, even actual helium flagrcms, is no bar under 
the American rule to the sale of a belligerent vessel to a neutral 
purchaser, provided that by the sale an absolute, unqualified 



78 

title passes in good faith to the vendee. It would appear that 
with the motive or the reason inducing the sale the courts will 
not concern themselves. 

The Benito Estengee, 176 U. S. 568 (1900, Fuller, C. J.). Dis- 
senting, Shiras, "White and Peckham, J. J. : 

Eejecting the claim that the Benito was engaged in behalf of 
of a Cuban junta, allies of the United States, and employed in 
friendly offices to the forces of the United States, the court found 
that the Benito was "enemy property" under the admiralty 
rule, because she was engaged in illegal traffic with the enemy, 
" which establishes her hostile character. Originally owned by a 
Spaniard, resident in Cuba, she was on June 9, 1898, sold to 
Beattie, an Englishman, and registered as a British ship. Ap- 
parently no money passed; claimant refused to describe the 
payment or payments ; the Spanish crew and the Spanish mas- 
ter remained in charge and she continued to trade with the 
enemy. Under such circumstances the court held her a good 
prize. The rule recognized in England and the United States 
is thus stated (page 578) : 

"Transfers of vessels flagrante hello were originally held 
invalid, but the rule has been modified, and is thus given by Mr. 
Hall, who, after stating that in France "their sale is forbidden, 
and they are declared to be prize in all cases in which they have 
been transferred to neutrals after the buyers could have knowl- 
edge of the outbreak of the war"; says: 'In England and the 
United States, on the contrary, the right to purchase vessels is 
in principle admitted, they being in themselves legitimate ob- 
jects of trade as fully as any other kind of merchandise, but the 
opportunities of fraud being great, the circumstances attending 
a sale are severely scrutinized, and the transfer is not held to be 
good if it is subjected to any condition or even tacit understand- 
ing by which the vendor keeps an interest in the vessel or its 
profits, a control over it, a power of revocation, or a right to its 
restoration at the conclusion of the war.' International Law 
(4th Ed.), 525. And to the same effect is Mr. Justice Story in 
his Notes on the Principles and Practices of Prize Courts 
(Pratt's Ed.), 63 ; 2 Wheat. App. 30 : 'In respect to the transfers 
of enemies' ships during the war, it is certain that purchases 
of them by neutrals are not, in general, illegal; but such pur- 
chases are liable to great suspicion; and if good proof be not 
given of their validity by a bill of sale and payment of a rea- 
sonable consideration, it will materially impair the validity of 
a neutral claim; * * * and if after such transfer the ship 
be employed habitually in the enemy's trade, or under the man- 
agement of a hostile proprietor, the sale will be deemed merely 



79 

colorable and collusive. * * * Anything tending to continue 
the interest of the enemy in the ship vitiates a contract of this 
description altogether.' " 

The Dacia: 

In August, 1914, the Dacia, a Hamburg-American steamer 
regularly in the German-Mexican gulf trade, was in Port Arthur, 
Texas, where she remained to escape capture. After a cotton 
broker had entered into a contract with him for the carriage of cot- 
ton from Galveston to Bremen, an irresponsible promoter named 
von Novelly purchased the Dacia from her owners for $165,000, 
the money to be returned in case of failure to obtain American 
registry. Novelly thereupon transferred all of his rights to 
Breitung, who paid the purchase price of the boat. The cotton 
shipper forthwith received seventy-five per cent, of the pur- 
chase price of the cotton. American registry was granted, but 
the transfer was protested by Great Britain, which refused safe 
conduct and informed Washington that the Dacia would be 
seized. February 27, 1915, the Dacia was captured by the French 
cruiser Europe (while on the very voyage she had undertaken 
to make when still flying the German flag) and taken into Brest, 
where the French prize court adopted as a canon of construction 
of Article 56, that a transfer could be considered valid only when 
there was reason to believe that it would have taken place if the 
war had not occurred, calling attention to the fact that this was 
the construction that the framers of the Declaration of London 
gave to Article 56, and citing the German prize ordinance of 
September 30, 1909, which announces the same rule. The Dacia 
was held a good prize. The French government acquired the 
cotton and returned the articles and effects not contraband of the 
captain and crew. 

See Stowell & Munro': War : 364. 

It has been suggested that the capture was not made by an 
English, but by a French cruiser, in order that jurisdiction might 
be given to a French Prize Court. 

"Apart from the Declaration of London, and whatever al- 
teration that may make in the law of nations, these artificial 
periods of time which have been agreed upon by the various 
nations — namely thirty and sixty days — cannot be found in any 
decision of any particular Prize Court belonging to any coun- 
try" (27). 

Sir Samuel Evans, The Tommi, supra. 



80 



CHAPTER VI. 

[ENEMY OHAEAOTBE.] 

Article 57. Subject to the provisions respecting transfer to another 
flag, the neutral or enemy character of a vessel is determined by the 
flag which she is entitled to fly. 

The case where a neutral vessel is engaged in a trade which is 
closed in time of peace, remains outside the scope of, and is in no wise 
affected by, this rule. 

[ENEMY CHARACTER.] 

Article 58. The neutral or enemy character of goods found on board 
an enemy vessel is determined by the neutral or enemy character of 
the owner. 

[ENEMY CHARACTER.] 

Article 59. In the absence of proof of the neutral character of goods 
found on board an enemy vessel, they are presumed to be enemy 
goods. 

[ENEMY CHARACTER.] 

Article 60. Enemy goods on board an enemy vessel retain their enemy 
character until they reach their destination, notwithstanding any 
transfer effected after the outbreak of hostilities whUe the goods are 
being forwarded. 

If, however, prior to the capture, a former neutral owner exercises, 
on the bankruptcy of an existing enemy owner, a recognized legal 
right to recover the goods, they regain their neutral character. 



Article 57: The Tommi; the Bother sand, ^ 1 Treliern, 16 (Sir 
Samuel Evans, President) : These two sailing vessels were at 
sea Aug. 1, 1914. On that date their German owners offered by 
telegraph to sell them to an English company (all of whose 
shares, however, were held by German aliens), and the offer was 
accepted. Held: Good prizes. 

"The law, as it was understood which says that the national- 
ity of a ship depends upon the flag was adopted by the Declara- 
tion of London by the parties which agreed to the Declaration 



81 

* * * *." After citing Article 57: The neutral or enemy 
character of a vessel is determined by the flag which she is en- 
titled to fly, the coiTrt holds that at the time of their seizure they 
were entitled to fly the German flag. 

Art. 60 : "But in time of war this [transfer in tra)i.situ] is pro- 
hibited as a vicious contract being a fraud on belligerent rights, 
not only in the particular transaction but in the great facility 
which it would necessarily introduce, of evading those rights be- 
yond the possibility of detection. It is a road that in time of war 
must be shut up ; for although honest men might be induced to 
travel it with very innocent intentions, the far greater proportion 
of those who passed would use it only for sinister purposes, and 
with views of fraud on the rights of the belligerent. ' ' 

The Jan Frederick, 5 C. Rob., 128; 1804, Lord Stowell (Sir 
William Scott). 

Cited with approval : The Tommi, 1 Trehern, 23. 

Nationality or Domicile? 

The Declaration of London has been criticised because it left 
undisposed of three questions of constantly recurring impor- 
tance. One is, shall the ownership of a ship or of a cargo claim- 
ing neutrality be determined by the domicile or by the nationality 
of the claimant! At the conference five voted in favor of domi- 
cile and five in favor of nationality as the determining factor. 

Consult The Clan Grant, 1 Trehern, 272. 

But as Germany has extra-territorial jurisdiction in China, a 
German subject resident in Shanghai does not acquire a civil 
domicile in China for war purposes, as he remains subject to 
the jurisdiction of his own state. "* * *_ No British sub- 
ject can change his legal domicile by residence in any place where 
the Crown has extra territorial authority" (389) ; and the rule 
was applied equally to a German subject. 

The Derflinger (No. 1), 1 Treh., 386. 

Pitt Cobbett: "Where a person is domiciled in a neutral 
country, but has a house of trade in an enemy country, he will 
also be deemed to have an enemy character, 2 Leading Cases, 25. 

The Rostock, 1 Treh., 523 : A German who had lived in Cey- 
lon for five years, absenting himself twice, once for three and 
once for four months (for the sake of his health?) and who had 
consigned the goods to the order of himself in Hamburg where 
he carried on his trade, did not acquire a trade domicile in Cey- 
lon. 



82 

" 'Enemy property' is a technical phrase peculiar to prize 
courts, and depends upon principles of public policy as distin- 
guished from the common law. The general rule is that in war 
the citizens or subjects of the belligerents are enemies to each 
other without regard to individual sentiments or dispositions, 
and that political status determines the question of enemy owner- 
ship. And by the law of prize, property engaged in any illegal 
intercourse with the enemy is deemed enemy property, whether 
belonging to an ally or a citizen, as the illegal traffic stamps it 
with the hostile character and attaches to it all the penal conse- 
quences. Prize cases, 2 Black, 635, 674; The Sullv, 8 Cranch, 
328, 384; Jeeker v. Montgomery, 18 How., 110; The PeterhofP, 
5 Wall., 28; The Flying Scud, 6 Wall., 263." 

Fuller, C. J., in the Benito Estenger, 176 U. S., 568-571. 

The exception of the last sentence of Article 57 is known as 
"Eule of War of 1756," which may be thus stated: 

Neutrals will not be allowed to engage in time of war in the 
trade between the enemy and his colonies from which they are 
excluded in tirae of peace. 

A decision of the Japanese Prize Courts illustrates the rule : 
Eussia, prior to the Russo-Japanese War, permitted no trade 
by foreign ships with the Komandorski Islands, a small group 
off the coast of Kamchatka, but during the war Russia permitted 
two Russian companies to employ foreign ships in this trade, and 
under this authority one of the companies chartered the Montara, 
a United States ship, which sailed from San Francisco and 
traded among the islands, discharging cargo and taking on furs 
and other articles. She was captured twenty days before the 
peace was signed. The cargo was the property of the Russian 
company. Held : an enemy ship transporting enemy goods, and 
rejecting the suggestion that her voyage was made in the interest 
of humanity, the Japanese Prize Courts held that she was a good 
prize. As to the suggestion that she was not brought to trial 
until after peace was signed, the court says: "A distinction 
must be made between the act of capture and the act of judging 
whether or not a capture was valid. ' ' 

Stowell & Munro : War : 444. 

"Coastwise trade and colonial trade have ever been esteemed 
by the proprietary Power its exclusive property from which it 
had the right to exclude foreign merchants. Conceding that the 
rights of neutrals, notwithstanding a state of war, must be pro- 
tected. "* * * the general rule is, that the neutral has a right to 
carry on, in time of war, his accustomed trade to the utmost ex- 
tent of which that accustomed trade is capable. Very different is 



83 

the case of a trade which the neutral has never possessed, which 
he holds by no title of use and habit in times of peace, and which, 
in fact, can obtain in war by no other title, than by the success 
of the one belligerent against the other, and at the expense of 
that very belligerent under whose success he sets up his title; 
and such I take to be the colonial trade, generally speaking. ' ' 

The Immanuel, 2 0. Rob. 186 (156-166 Am. Ed.). Sir William 
Scott, J. 

The exception in Article 57 seems to leave the Rule of War 
of 1756 untouched ; that no attempt was made to formulate it and 
to incorporate it has been observed by some of the critics of the 
Declaration. 

Quaere: When a company, organized under the laws of a 
nation, all of whose stock, however, is held by aliens, owns a ship : 
what is the nationality of the ship? 

The Poona, 1 Treh., 275. 

The leading English case (a notable case), is the Maria, 1 C. 
Rob., 340 (Am. Ed., p. 287), Sir William Scott, 1799. 

Sailing under the convoy of a Swedish frigate, instructed by 
its government to resist by force visitation and search by bellig- 
erent warships, six Swedish ships were encountered off the Eng- 
lish coast laden with naval stores for Mediterranean ports. Visit 
and search was refused and armed resistance threatened. By 
stratagem and by the display of superior force an engage- 
ment was avoided and the ships and the frigate were taken into 
a British port. Holding that the right of visiting and searching 
is incontestible ; that treaty provisions (America-Holland, 1782, 
Art. 10), may waive the right; but that a lawful right can not 
lawfully be resisted by force, the court held the merchantmen 
good. prizes. The frigate was not in the case. * * * "The 
penalty for the contravention of this right is the confiscation of 
the property so withheld from visitation and search" (307). To 
the contention that the intention to resist by force was never 
carried to act : " The intention gives way, so far as it does give 
way, only to a superior force * * * the delivery and ac- 
ceptance of such instructions and the sailing under them were 
sufficient to complete the act of hostility." 



84 



CHAPTER VII. 

[CONVOY.] 

Article 61. Neutral vessels under national convoy are exempt from 
search. The commmander of a convoy gives, in writing, at the re- 
quest of the commander of a belligerent warship, all information as to 
the character of the vessels and their cargoes, which could be ob- 
tained by search. 

[CONVOY.] 

Article 62. If the commander of the belligerent warship has reason to 
suspect that the confidence of the commander of the convoy has been 
abused, he communicates his suspicions to him. In such a case it is 
for the commander of the convoy alone to investigate the matter. He 
must record the result of such investigation in a report, of which a 
copy is handed to the officer of the warship. K, in the opinion of the 
commander of the convoy, the facts shown in the report justify the 
capture of one or more vessels, the protection of the convoy must be 
withdrawn from such vessels. 



The provisions of this chapter depart from the customary 
terms of many of our treaties by giving inquisitorial powers to 
the belligerent commander. 

"It is agreed that the stipulations contained in the present 
treaty relative to the visiting and examining of a vessel shall 
apply only to those which sail without a convoy ; and when said 
vessels shall be under convoy the verbal declaration of the com- 
mander of the convoy, on his word of honor, that the vessels 
under his protection belong to the nation whose flag he carries, 
and, when bound to an enemy's port, that they have no contra- 
band goods on board, shall be sufficient. ' ' 

Treaty U. S. with Italy, February 26, 1871 , Art. XIX. 

Treaty U. S. with Mexico, 1831, Art. XXIV. 

Treaty U. S. with Bolivia, 1858, Art. XXIII. 

Treaty U. S. with Brazil, 1828, Art XXII. 

Treaty U. S. with Chili, 1832, Art. XX. 

Treaty U. S. with Guatemala, 1849, Art. XXII. 



85 

Section 1624 R. S. TJ. S. (enacted in 1862) provides : 

"Such punishment as a court-martial may adopt may be in- 
flicted up an person in the navy : 

' ' Twelfth. Or, when attached to any vessel appointed as con- 
voy to any merchant or other vessels, fails diligently to perform 
his duty, or demands or exacts any compensation for his serv- 
ices, or maltreats the officers or crews of such merchant or other 
vessels." 

The chapter on convoy finds place in the Declaration of Lon- 
don, it is said, because of the insistence of the American con- 
ferees. 



86 



CHAPTER VIII. 



[RESISTANCE TO SEARCH.] 



Article 63. Forcible resistance to the legitimate exercise of the right 
of stoppage, search, and capture, involves in all cases the condemna- 
tion of the vessel. The cargo is liable to the same treatment as the 
cargo of an enemy vessel. Goods belonging to the master or owner of 
the vessel are treated as enemy goods. 



Under the English rule "an attempt to escape by flight 
merely, is not interpreted as a ground of seizure; but is ac- 
companied by further opposition it is regarded as a form of 
resistance." British Manual Prize Law, No. 146. 

But Gen. Ord. 492 (1898) seems contra. 

The Government of the United States (White Paper, No. 1, 
p. 40) admits to the British Government the full right of a bel- 
ligerent to visit and search on the high seas American vessels 
carrying American goods or other neutral vessels carrying 
American goods; and to detain them when there is sufficient 
evidence to justify a belief that contraband articles are in their 
cargoes ; but protests against the taking and detaining in Brit- 
ish ports of American ships and American cargoes for the pur- 
pose of searching generally for evidence of contraband or "upon 
presumptions created by special municipal enactments which 
are clearly at variance with international law and practice. ' ' 

The importance and scope of the right claimed by England 
to take neutral ships and neutral mail into her ports for visit 
and search is so great that it should be made the subject of an 
independent investigation. 

[a leading case.] 

The Nebeide, 9 Cranch. 388 (1815, Marshall, C. J., Story, J., 
dissenting) : 

Pinto, a native and citizen of Buenos Ayres, and a subject 
of the King of Spain, chartered the Nereide, a merchantman 
mounting ten guns and manned by sixteen men, for a voyage 
from London to Buenos Ayres and back to London, to sail with 



87 

the first convoy. A cargo belonging in part to Pinto and in part 
to other inhabitants of Buenos Ayres and in part to British 
subjects, was taken aboard, and the Nereide sailed under con- 
voy some time in November, 1813. Off Madeira she was separated 
from her convoy, was "after a vigorous but unsuccessful re- 
sistance" captured by an American privateer, and was brought 
into the port of New York, where both ship and cargo were con- 
demned, including the cargo belonging to Pinto and other own- 
ers resident in Buenos Ayres. 

The treaty between Spain and the United States stipulated 
that neutral bottoms should make neutral goods, but did not 
stipulate that enemy bottoms made enemy goods. Furthermore, 
it appeared that certain ordinances of the King of Spain would 
subject American property, under the facts of this case, to con- 
fiscation. 

In one of the most enlightened and logical opinions to be 
found in any law book, the Chief Justice declared as a natural 
principle of public law, and as a part of the original law of na- 
tions, notwithstanding the silence of the treaty and the pro- 
visions of the Spanish ordinances, that the goods of a friend 
found in the vessel of an enemy are to be restored to him. 

At page 420 reference is made to the opinion of the King of 
Prussia "that in future neutral bottoms would protect the goods 
of an enemy, and that neutral goods would be safe in an enemy 
bottom. ' ' 



CHAPTER IX. 



[COMPENSATION.] 



Article 64. If the capture of a vessel or of goods is not upheld by the 
prize court, or if the prize is released without any judgment being] 
given, the parties interested have the right to compensation, unless 
there were good reasons for capturing the vessel or goods. 



The practice in prize courts: 

The common law rules of evidence have no place in prize 
cases: They are essentially lex juris civilis, and heresay and 
belief may be admitted. 

The Olinde-Rodriques, 89 F. R. 105-108. 

The Kim, 1 Treh., 405. 

A foreign public vessel of a power with which we are at 
peace is exempt from the jurisdiction of our courts; but not 
so the prizes that she takes and brings to our waters. 

The Santisima Trinidad, 7 Wheat 283. 

Ship's Papees are: 
The register, 

The crew and passenger list. 
The log book. 
Bill of health, 
Manifest of cargo, 
Charter-party (if any). 
Invoices and Bills of Lading. 

Stockton's Code, Art. 23. 



89 



[FINAL PROVISIONS.] 



Article 65. The provisions of the present Declaration must be treated 
as a whole, and cannot be separated. 



[FINAL PROVISIONS.] 

Article 66. The Signatory Powers undertake to insure the mutual ob- 
servance of the rules contained in the present Declaration in any war 
in which all the belligerents are parties thereto. They will therefore 
issue the necessary instructions to their authorities and to their armed 
forces, and will take such measures as may be required in order to 
insure that it will be applied by their courts, and more particularly 
by their prize courts. 

[FINAL PROVISIONS.] 

Article 67. The present Declaration shall be ratified as soon as pos- 
sible. 

The ratifications shall be deposited in London. 

The first deposit of ratifications shall be recorded in a Protocol 
signed by the Representatives of the Powers taking part therein, and 
by His Britannic Majesty's Principal Secretary of State for Foreign 
Affairs. 

The subsequent deposits of ratifications shall be made by means of 
a written notification addressed to the British Government, and ac- 
companied by the instrument of ratification. 

A duly certified copy of the Protocol relating to the first deposit! 
of ratifications, and of the notifications mentioned in the preceding 
paragraph as well as of the instruments of ratification which accom- 
pany them, shall be immediately sent by the British Government, 
throtigh the diplomatic channel, to the Signatory Powers. The said 
Government shall, in the cases contemplated in the preceding para- 
graph, inform them at the same time of the date on which it received 
the notification. 



[FINAL PROVISIONS.] 

Article 68. The present Declaration shall take effect, in the case of the 
Powers which were parties to the first deposit of ratifications, sixty 
days after the date of the Protocol recording such deposit, and, in 
the case of the Powers which shall ratify subsequently, sixty days 
after the notification of their ratification shall have been received by 
the British Government. 



90 

[FINAL PROVISIONS.] 

Article 69. In the event of one of the Signatory Powers wishing to| 
denounce the present Declaration, such denunciation can only be made 
to take effect at the end of a period of twelve years, beginning sixty 
days after the first deposit of ratifications, and, after that time, at the 
end of successive periods of six years, of which the first will begin at 
the end of the period of twelve years. 

Such denunciation must be notified in writing, at least one year in 
advance, to the British Government, which shall inform all the other 
Powers. 

It will only operate in respect of the denouncing Power. 



[FINAL PROVISIONS.] 

Article 70. The Powers represented at the London Naval Conference 
attach particular importance to the general recognition of the rules 
which they have adopted, aaid therefore express the hope that the 
Powers which were not represented there will accede to the present 
Declaration. They request the British Government to invite them to 
do so. 

A Power which desires to accede shall notify its intention in writing 
to the British Government, and transmit simultaneously the act of 
accession, which will be deposited in the archives of the said Gov- 
ernment. 

The said Government shall forthwith transmit to all the other 
Powers a duly certified copy of the notification, together with the 
act of accession, amd communicate the date on which such notification 
was received. The accession takes effect sixty days after such date. 

In respect of all matters concerning this Declaration, acceding 
Powers shall be on the same footing as the Signatory Powers. 



[FINAL PROVISIONS.] 

Article 71. The present Declaration, which bears the date of the 26th 
February, 1909, may be signed in London up till the 30th June, 1909, 
by the Plenipotentiaries of the Powers represented at the Naval Con- 
ference. 

In faith whereof the Plenipotentiaries have signed the present Dec- 
laration, and have thereto affixed their seals. 

Done at London, the twenty-sixth day of February, one thousand 
nine hundred and nine, in a single original, which shall remain de- 



91 

posited in the archives of the British aovermnent, and of which duly- 
certified copies shall be sent through the diplomatic channel to the 
Powers represented at the Naval Conference. 

(Here follow the signatures.) 

List of signatures appended to the Declaration of FeTjruary 26, 1909, up to 

March 20, 1909.* 
For Germany : 

For the United States of America: 

O. H. Stockton. 

_ . . . „ Geobqe Gbafton Wilson. 

For Austria-Hungary : 

„ „ O. DUMBA. 

For France: 

„ L. Renault. 

For Great Britain : 

For the Netherlands : 

J. A. ROKLL. 

li. H. Rttyssbinaebs. 

♦Notification subsequently given of the signatures of the declaration : Spain, Italy, 
Russia, Japan. 

The teansfobmation op merchantmen into warships at sea : 

Attention has been called to three questions which the Con- 
ference purposely avoided. Two of them have already been 
noted. The third is: The transformation of merchant vessels 
to vessels of war on the high seas. It would appear that as 
early as 1870 Prussia proposed to bring private vessels into 
service in time of war by a system of voluntary enrollment in 
the navy of private vessels with their officers and crew. France 
protested, but Great Britain interposed no objection. 

Other nations soon after followed: Eussia in 1877, Great 
Britain in 1887, and the United States in 1892. 

(By the Federal Act— 27 U. S. Stats, at Large, 28, Chap. 63, 
Sec. 4— it was provided that any steamship so registered might 
be taken and used as cruiser or transport upon payment of the 
fair actual value.) 

The practice was open to many abuses, and the Hague Con- 
ference of 1907 adopted a Convention in regulation thereof. 

See 40 Cyc, page 340. Prof. George Grafton Wilson. 

When the Russo-Japanese War broke out vessels of the 
Russian Voluntary Fleet were in the Black Sea. As merchantmen, 
but not as vessels of war, they might freely pass through the 
Bosphorus and the Dardanelles. Accordingly, one of them, the 
Peterburg, after passing the Suez Canal, also in the character 
of a merchant vessel, was converted into a warship in the Red 



92 

Sea. Concealed guns were mounted, and under the Russian 
naval ensign she began to visit and search neutral vessels, among 
others the Malacca, a steamship of the P. & 0. Line from Lon- 
don to China with military supplies of the British Government 
intended for the English dock yards at Hong Kong and Singa- 
pore. At the protest of the English Government she was re- 
leased. 

Immediately upon the beginning of hostilities in August, 1914, 
the British Government advised the United States that Ger- 
many favored the policy of converting merchant vessels into 
armed ships on the high seas, and that it was probable that at- 
tempts would be made to equip and dispatch merchantmen for 
such purposes from ports of the United States. Attention was 
therefore called to treaties and conventions to which the United 
States was a party, and the United States was warned that she 
would be held responsible for damages to British trade or ship- 
ping or to British interests generally which might be occasioned 
by such vessels having been equipped at or departing from 
United States ports (British note of Aug. 4, 1914). To which 
the United States in reply called attention to the difference of 
opinion on this question of the Powers at the Second Hague 
Conference, and takes the matter under advisement. 

Stowell and Munro : War : 478 et seq. 

A Fable : Once upon a time there lived in a village by the 
sea a man with his wife and his two sons. At his death his estate 
was divided share and share alike among the members of his 
family. With his share the eldest son bought and stocked a 
farm on the bay ; the other son with his share bought a trading 
schooner which he kept at anchor in sight of his brother's farm; 
while the mother invested her share in personal effects which 
she kept in her possession till her death when they were divided 
amicably between her sons. 

The eldest son took his share to his farm and the other son 
took his share to his trading schooner. 

But a war was raging and the next day the village was seized 
by the army of the enemy and the port by the navy of the enemy. 

The farmer's farmstead was respected: he was not molested 
and everything the army took it paid for; but the sailor's 
schooner was seized and condemned both as to ship and cargo 
because they were good prize of war : Enemy goods in an enemy 

ship. ^ 

When the war was over the landsman was no worse off than 

before but the sailor was stripped of everything. 

This was all done under the approval of the law of nations 

as administered by the most civilized country of the Avorld.